No. 95-253
In the Supreme Court of the United States
OCTOBER TERM, 1995
UNITED STATES OF AMERICA, ET AL., PETITIONERS
v.
EDWARD H. KOCH, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
JOHN D. LESHY
Solicitor
Department of the Interior
Washington, D.C. 20240
DREW S. DAYS, III
Solicitor General
Department of Justice
Washington, D.C. 20530
(202)514-2217
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TABLE OF AUTHORITIES
Cases:
Page
Bode v. Rollwitz, 199 P. 688 (Mont. 1921) . . . . 4
Bourgeois v. United States, 545 F.2d 727(Ct. Cl.
1976) . . . . 4
Buxton v. Traver, 130 U.S. 232 (1889) . . . . 4
Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)
Grand Rapids & I.R.R. v. Butler, 159 U.S. 87
(1895) . . . . 5
R.A. Mikelson, 26 I.B.L.A. 1 (1976) . . . . 4
Mission Rock Co. v. United States, 109 F. 763 (9th
Cir. 1901), aff'd, 189 U.S. 391 (1903) . . . . 3
Moss v. Ramey, 239 U.S. 538 (1916) . . . . 4
Emma S. Peterson, 39 Pub. Lands Dec. 566 (1911) . . . .4
Ritter v. Morton, 513 F.2d 942 (9th Cir.), cert.
denied, 423 U.S. 947 (1975) . . . . 3
Scott v. Lattig, 227 U.S. 229 (1913 ) . . . . 4, 5
Steinbuchel v. Lane, 51 P. 886 (Kan. 1898) . . . . 4
Texas v. Louisiana, 410 U.S. 702 (1973) . . . . 5
United States v. Severson, 447 F.2d 631 (7th Cir.
1971), cert. denied, 404 U.S. 1039 (1972) . . . . 1
Watt v. Western Nuclear, Inc., 462 U.S. 36 (1983).
Wolff v. United States, 967 F.2d 222 (6th Cir.
1992) . . . . 4
Miscellaneous:
BLM, Manual of Surveying Instructions (1973) . . . . 4
(I)
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In the Supreme Court of the United States
OCTOBER TERM, 1995
No. 95-253
UNITED STATES OF AMERICA, ET AL., PETITIONERS
v.
EDWARD H. KOCH, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
We explain in our petition for a writ of certiorari
that the question presented in this case-whether a
federal land patent that conveys riparian land also
grants title to unsurveyed islands in the adjacent
stream-presents an important issue of federal law
that has generated a serious and irreconcilable. con-
flict among the courts of appeals. Respondents' ar-
guments to the contrary are unpersuasive.
1. Respondents, who contend that this case simply
involves title to some "insignificant land masses" (Br.
in Opp. J.), ignore the nationwide significance of the
legal question at issue. Congress has plenary author-
ity to dispose of the public lands. See Pet. 3-6, 22-23.
The United States has asked this Court to resolve a
(1)
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2
legal question of national importance respecting Con-
gress's exercise of that power. We submit that Con-
gress has not authorized the implicit conveyance of
unsurveyed public lands to riparian owners free of
charge. The six islands at issue here, which range in
size from 7 to 67 acres and contain valuable minerals,
are by no means "insignificant ." See Pet. 7-9. But
more important, those islands, which are found in a
mere 15-mile reach of a single river, represent only a
handful of the thousands of unsurveyed islands that
are currently subject, as a consequence of the court
of appeals' decision, to an uncertain ownership status.
See Pet. 12-13.1
2. The case warrants review now because the
courts of appeals have adopted contradictory rules
governing conveyance of unsurveyed islands. Respon-
dents are wrong in contending otherwise. See Br. in
Opp. 5-7, 8, 16. The court of appeals in this case
expressly acknowledged that the federal circuits are
divided on the question. See Pet. App. 10a-11a & n.6,
13a. Indeed, as we explain in our petition, the courts
of appeals have fallen into complete disarray
___________________(footnotes)
1 Respondents question whether the lands at issue here are
actually islands, stating that the administrative law judge made
a finding that "the land masses were not islands at the time the
original surveys were conducted." Br. in Opp. 3; see Pet. App.
36a-37a. The Interior Board of Land Appeals (IBLA), however,
carefully examined that issue and overruled the administrative
law judge's finding, id. at 59a-65a, and the courts below both
accepted the IBLA's ruling, see id. at 4a, 74a. Thus, the status
of those land masses as islands is beyond question. See, e.g.,
Goodman v. Lukens Steel Co., 482 U.S. 656, 665 (1987) ("both
courts below having agreed on the facts, we are not inclined to
examine the record for ourselves absent some extraordinary
reason for undertaking this task").
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3
respecting the status of unsurveyed islands. See Pet.
13-21.
Respondents' attempts to diminish the conflict are
unavailing. For example, they contend that the Sev-
enth Circuit's ruling in United States v. Severson,
447 F.2d 631 (1971), cert. denied, 404 U.S. 1039 (1972),
which upheld the United States' ownership of two
islands, turned on the dimensions of the disputed
lands, which were approximately 20 and 255 acres in
size. Br. in Opp. 16. To the contrary, the Seventh
Circuit concluded that the United States retained
ownership of the disputed lands because "the unsur-
veyed islands, existing at the time of statehood, re-
mained the property of the United States," and
`Wisconsin law could not and the patents did not con-
vey to the patentees the unsurveyed islands." 447
F.2d at 635; see Pet. 17. In any event, the conflict
among the cases cannot be reconciled by distinctions
based on the size of the islands. The Ninth Circuit
has upheld government ownership in a case involving
much smaller islands, which ranged in size from .84 to
8.99 acres. See Ritter v. Morton, 513 F.2d 942, 944,
cert. denied, 423 U.S. 947 (1975); Pet. 17-18; see also
Mission Rock Co. v. United States, 109 F. 763, 769-770
(9th Cir. 1901) (upholding federal ownership of two
islands that were respectively .01 and .14 acres in
size), aff'd, 189 U.S. 391 (1903). 2.
Respondents also contend that the conflicting cases
can be distinguished based on whether the surround-
___________________(footnotes)
2 As we explain in the petition, although the Ninth Circuit's
Ritter decision is ultimately correct, it rests on a misunderstand-
ing of this Court's precedents. See Pet. 18 n.9. Hence, that
decision contributes somewhat to the current disarray in the
courts of appeals.
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4
ing waters are navigable or non-navigable. See Br. in
Opp. 18 & n.18. The Court of Claims had suggested
such a distinction, see Bourgeois v. United States,
545 F.2d 727, 730-731 (1976), but the Sixth Circuit
has expressly disavowed that rationale, see Wolff v.
United States, 967 F.2d 222, 226 n.3 (1992). See Pet.
19-21. Contrary to respondents' contention, a distinc-
tion based on the navigability of the surrounding
waters cannot reconcile the case law. Indeed, that
rationale would also conflict with state supreme court
decisions that have recognized that the United States
retains unsurveyed islands whether or not the
surrounding waters are navigable. See Bode v.
Rollwitz, 199 P. 688, 690-691, 692-693 (Mont. 1921);
Steinbuchel v. Lane, 51 P. 886, 887-888 (Kan. 1898).
3. Respondents' arguments in support of the court
of appeals' decision demonstrate precisely why the
Court should review this case. This Court has made
clear that Congress requires upland to be surveyed
prior to disposition and that the United States there-
fore retains ownership of unsurveyed islands. See
Pet. 17-29; see also, e.g., Moss v. Ramey, 239 U.S. 538
(1916); Scott v. Lattig, 227 U.S. 229 (1913); Buxton v.
Traver, 130 U.S. 232,235 (1889), Those principles are
longstanding and widely acknowledged. See, e.g.,
Severson, 447 F.2d at 635; Bode, 199 P. at 692-693;
R.A. Mikelson, 26 I.B.L.A. 1 (1976); Emma S.
Peterson, 39 Pub. Lands Dec. 566 (1911); BLM,
Manual of Surveying Instructions 3-122 (1973).
Nevertheless, as a result of the arguments put
forward by respondents and accepted by the court of
appeals, the law has now become uncertain and
confused.
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5
Respondents rely on cases, such as Grand Rapids
& I.R.R. v. Butler, 159 U.S. 87 (1895), that this Court
specifically distinguished in Scott v. Lattig, 227 U.S.
at 244. Compare Pet. 14-16 with Br. in Opp. 9. They
also conflate the principles that apply to uplands with
those that apply to submerged lands. Compare Pet. 28
(quoting this Court's admonition that the rules
applicable to submerged lands are not applicable to
"islands or fast lands" (Texas v. Louisiana, 410 U.S.
702, 713 (1973)) with Br. in Opp. 2 (stating that "[t]his
case concerns title to the bed of a non-navigable
river"). Furthermore, respondents would subordinate
the intent of Congress, which has plenary power over
the disposition of public lands, see Watt v. Western
Nuclear, Inc., 462 U.S. 36, 47-54 (1983), to dubious
inferences respecting the subjective beliefs of the
Department employees who surveyed the lands and
prepared the patents. Compare Pet. 22-27 with Br. in
Opp. 21-23. Finally, respondents' contention that they
acquired title to the islands, even though they regard
the United States' intent on that point here as
"ambiguous" (Br. in Opp. 23), cannot be reconciled
with "the established rule that land grants are
construed favorably to the Government, that nothing
passes except what is conveyed in clear language, and
that if there are doubts they are resolved for the
Government, not against it." Western Nuclear, 462
U.S. at 59.
This case presents the appropriate opportunity to
clarify the controlling principles in this area of public
land law, where clear and certain rules are essential
to efficient government and to the protection of
property rights and settled expectations.
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6
For the foregoing reasons, and the reasons stated
in the petition, the petition for a writ of certiorari
should be granted.
Respectfully submitted.
JOHN D. LESHY
Solicitor
Department of the Interior
DREW S. DAYS, III
Solicitor General
OCTOBER 1995
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No. 95-253
In the Supreme Court of the United States
OCTOBER TERM, 1995
UNITED STATES OF AMERICA, ET AL., PETITIONERS
v.
EDWARD H. KOCH, ET AL.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JOHN D. LESHY
Solicitor
LYLE K. RISING
LORI R.F. MONROE
Attorneys
Department of the Interior
Washington, D.C. 20240
DREW S. DAYS, III
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
DAVID C. SHILTON
GERALD S. FISH
JACQUES B. GELIN
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 514-2217
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QUESTION PRESENTED
Whether a land patent from the United States
granting title to surveyed riparian land also grants
title to unsurveyed islands in the adjacent stream.
(I)
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II
PARTIES TO THE PROCEEDING
The petitioners are the United States of America,
the Department of the Interior, the Interior Board of
Land Appeals, and the Bureau of Land Management.
The respondents are Edward H. Koch, Walter B.
Lemon, Roberta A. Lemon, Edward N. Juhan, and
Anthony F. Zarlengo.
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TABLE OF CONTENT'S
Page
Opinions below . . . . 1
Jurisdiction . . . . 1
Constitutional and statutory provisions involved . . . . 2
Statement . . . . 2
Reasons for granting the petition . . . . 11
Conclusion . . . . 30
Appendix A . . . . 1a
Appendix B . . . . 15a
Appendix C . . . . 18a
Appendix D . . . . 39a
Appendix E . . . . 68a
Appendix F . . . . 81a
TABLE OF AUTHORITIES
Cases:
Andrus v. Charlestone Stone Prods. Co., 436 U.S.
604 (1978) . . . . 26
Andrus v. Utah, 446 U.S. 500 (1980) . . . . 24-25
Arizona v. California, 460 U.S. 605 (1983) . . . . 12
Blask v. Sowl, 309 F. Supp. 909 (W.D. Wk. 1967) . . . . 17
Block v. North Dakota, 461 U.S. 273 (1983) . . . . 9
Bode v. Rollwitz, 199 P. 688 (Mont, 1921) . . . . 16
Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973) . . . . 10
Bourgeois v. United States, 545 F.2d 727 (Ct. CL
1976) . . . . 16, 19, 20
Brown's Lessee v. Clements, 44 U.S. (3 How.)
650 (1845) . . . . 24
Bryant v. Yellen, 447 U.S. 352 (1980) . . . . 26
Buxton v. Traver, 130 U.S. 232 (1889) . . . . . 24
Caldwell v. United States, 250 U.S. 14 (1919) . . . . 26
California Coastal Comm'n v. Granite Rock Co.,
480 U.S. 572 (1987) . . . . 22-23
(III)
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IV
Cases Continued:
Page
California v. United States, 457 U.S. 273 (1982) . . . . 23
Chotard v. Pope, 25 U.S. (12 Wheat.) 586 (1827) . . . . 24
Cox v. Hart, 260 U.S. 427 (1922) . . . . 25
Easton v. Salisbury, 62 U.S. (21 How.) 426
(1858) . . . . 23
Eldred v. Sexton, 86 U.S. (19 Wall) 189 (1873) . . . . 24
Gibson v. Chouteau, 80 U.S. (13 Wall.) 92 (1871) . . . . 23
Grand Rapids & I.R.R. v. Butler, 159 U.S. 87
(1895) .
Great N. Ry. v. United States, 315 U.S. 262
(1942) . . . . 10
Hardin v. Jordan, 140 U.S. 371 (1891) . . . . 20
Horne v. Smith, 159 U.S. 40 (1895) . . . . 25
Hughes v. Washington, 389 U.S. 290 (1967) . . . . 23
Lattig v. Scott, 17 Idaho 506 (1910) . . . . 14
Lee Wilson & Co. v. United States, 245 U.S. 24
(1917)
R.A. Mikelson, 26 I.B.L.A. 1 (1976) . . . . 11
Mission Rock Co. v. United States, 109 F. 763 (9th
Cir. 1901), aff'd, 189 U.S. 391 (1903) . . . . 16
Moss v. Ramey, 239 U.S. 538 (1916) . . . . 11, 13, 15, 16,
20, 29
Niles v. Cedar Point Club, 175 U.S. 300 (1899) . . . . 25
Northern Pac. R.R. v. Soderberg, 188 U.S. 526
(1903) . . . . 26
Oklahoma v. Texas, 258 U.S. 574 (1922) . . . . 19, 20
Oregon v. Corvallis Sand & Gravel Co., 429 U.S.
363 (1977) . . . . 11
Papasan v. Allain, 478 U.S. 265 (1986) . . . . 4
Emma S. Peterson, 39 Pub. Lands Dec. 566 (1911) . . . . 11, 27
Railroad Co. v. Schurmeir, 74 U.S. (7 Wall.) 272
(1868) . . . . 14, 18
Ritter v. Morton, 513 F.2d 942 (9th Cir.), cert.
denied, 423 U.S. 947 (1975) . . . . 16, 18
Scott v. Lattig, 227 U.S. 229 (1913) . . . . 11, 13, 14, 15, 18,
20, 25, 28, 29
State v. Nolegs, 139 P. 943 (Okla. 1914) . . . . 16
Steinbuchel v. Lane, 51 P. 886 (Kan. 1898) . . . . 16
Texas v. Louisiana., 410 U.S. 702 (1973) . . . . 16, 28
United States v. Arredondo, 31 U.S. (6 Pet.) 691
(1832) . . . . 26
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V
Cases-Continued:
Page
United States v. Boyd, 458 F.2d 1252 (6th Cir.
1972) . . . . 21
United States v. Chandler-Dunbar Water Power
Co., 209 U.S. 447 (1908) . . . . 15
United States v. Lemon, 632 F. Supp. 431 (D.
Colo. 1986) . . . . 8
United States v. Montana Lumber & Mfg. Co., 196
U.S. 573 (1905) . . . . 24
United States v. Motion, 240 U.S. 192 (1916 ) . . . . 24
United States v. Northern Pac. R.R., 311 U.S. 317
(1940) . . . . 24
United States v. Oregon, 295 U.S. 1 (1935) . . . . 23
United States v. Severson, 447 F.2d 631 (7th Cir.
1971), cert. denied, 404 U.S. 1039 (1972) . . . . 16, 17
United States v. Union Pac. R.R., 353 U.S. 112
(1957) . . . . 26
United States v. Wyoming, 331 U.S. 440 (1947 ) . . . . 24
Utah Div. of State Lands v. United States, 482 U.S.
193 (1987) . . . . 22, 28
Watt v. Western Nuclear, Inc., 462 U.S. 36 (1983) . . . . 26, 27
Whitaker v. McBride, 197 U.S. 510 (1905) . . . . 15, 20
Wilcox v. Jackson, 38 U.S. (13 Pet.) 498 (1839) . . . . 23
Wolff v. United States, 770 F. Supp. 1205 (W.D.
Mich. 1991), aff'd, 967 F.2d 222, reh'g denied,
974 F.2d 702 (6th Cir. 1992) . . . . 16, 20, 21
Constitution, statutes and regulations:
U.S. Const. Art. IV . . . . 22
3, Cl. 2 . . . . 2, 5, 22
Act of May 18, 1796, ch. 29, 1 Stat. 464 . . . . 5
4, 1 Stat. 466 . . . . 24
Act of May 10, 1800, ch. 55, 2 Stat. 73 . . . . 5
Act of Mar. 26, 1804, ch. 35, 2 Stat. 277 . . . . 5
Act of Apr. 24, 1820, ch. 51, 1, 3 Stat. 566 . . . . 67, 24
Act of Sept. 4, 1841, ch. 16, 10, 5 Stat. 455 . . . . 24
Act of Mar. 3, 1853, ch. 145, 3, 10 Stat. 245 . . . . 6, 24
Act of May 20, 1862 (Homestead Act), ch. 75, 1,
12 Stat. 392 . . . . 24, 26
Act of Mar. 3, 1891, ch. 561, 13, 26 Stat. 1100 . . . . 24
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VI
Statutes and regulations-Continued:
Page
Federal Land Policy and Management Act of 1976,
43 U.S.C. 1701 et seq . . . . 7, 12
103 (o), 43 U.S.C. 1702 (o) . . . . 16
201, 43 U.S.C. 1711 . . . . 7, 12
211, 43 U.S.C. 1721 . . . . 12, 29
Michigan Public Lands Improvement Act of 1988,
Pub. L. No. 100-537, 102 Stat. 2711 . . . . 12
Minnesota Public Lands Improvement Act of 1990,
Pub. L. No. 101-442, 104 Stat. 1020 . . . . 12
Quiet Title Act of 1972, 28 U.S.C 2409a . . . . 9
28 U.S.C. 2409a(a) . . . . 9
28 U.S.C. 2409a (d) . . . . 9
28 U.S.C. 2409a(g) . . . . 9
Submerged Lands Act of 1953, 43 U.S.C. 1301 et
seq . . . . 28
Rev. Stat. 2353 et seq. (1875 cd.) . . . . 2, 7, 83a
Rev. Stat. 2357 (1875 cd.) . . . . 7, 26, 84a
Rev. Stat. Supp. I (2d ed. 1874-1891) . . . . 2, 7
Rev. Stat. Supp. II (1892-1901) . . . . 2, 7
28 U.S.C. 1331 . . . . 9
42 U.S.C. 671 et seq . . . . 2
43 U.S.C. 751 et seq . . . . 4, 5
43 C.F.R.:
Pt. 4:
Sections 4.1 et seq . . . . 8
Pt. 9180 . . . . 7
Pt. 9185:
Section 9185.2-3 . . . . 12
Miscellaneous:
BLM, Manual of Surveying Instruction (1973) . . . . 6, 11,
13, 27
P.W. Gates & R.W. Swenson, History of Public
Land Law Development (1968) . . . . 6
B.H. Hibbard, A History of the Public Land Poli-
cies (1939) . . . . 3, 4, 6
18 J. Continental Cong. 915 (1780) . . . . 22
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VII
Miscellaneous-Continued:
Page
26 J. Continental Cong. (1784):
p. 277 . . . . 22
pp. 324-330 . . . . 4
28 J. Continental Cong. (1785):
p. 114 . . . . 4
p. 264 . . . . 4
pp. 298-302 . . . . 4
pp. 375-381 . . . . 4
Report of a Committee to Establish a Land Office
(Apr. 30, 1784) . . . . 4
R.M. Robbins, Our Landed Heritage (2d ed. 1976) . . . . 3, 4
3 J. Story, Commentaries on the Constitution
(1833) . . . . 3
The Papers of Thomas Jefferson (J.P. Boyd ed.
1953) :
Vol. 2 . . . . 4
Vol. 6 . . . . 4
Vol. 7 . . . . 3-4
C.A. White A History of the Rectangular Survey
System (1983) . . . . 3, 4, 5, 6, 25, 27
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In the Supreme Court of the United States
OCTOBER TERM, 1995
No.
UNITED STATES OF AMERICA, ET AL., PETITIONERS
v.
EDWARD H. KOCH, ET AL.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
The Solicitor General, on behalf of the United
States of America, petitions for a writ of certiorari
to review the judgment of the United States Court of
Appeals for the Tenth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra,
1a-14a) is reported at 47 F.3d 1015. The opinion
of the district court (App., infra, 68a-80a) is reported
at 814 F. Supp. 996. The opinion of the Interior
Board of Land Appeals (App., infra, 39a-67a) is re-
ported at 118 I.B.L.A. 38. The opinion of the admin-
istrative law judge (App., infra, 18a-38a) is un-
reported.
JURISDICTION
The judgment of the court of appeals was entered
on January 31, 1995. A petition for rehearing was
denied on April 13, 1995 (App., infra, 81a-82a). On
(1)
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2
July 6, 1995, Justice Breyer extended the time for
filing a petition for a writ of certiorari to and in-
cluding August 11, 1995. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
Article IV, Section 3, Clause 2, of the United
States Constitution provides in relevant part:
The Congress shall have Power to dispose of
and make all needful Rules and Regulations re-
specting the Territory or other Property belong-
ing to the United States; * * *.
The statutory provisions governing the land pat-
ents at issue in this case are set out in the Revised
Statutes of 1873, as amended. See Rev. Stat. 2353
et seq. (1875 ed.); Rev. Stat. Supp. I (2d ed. 1874-
1891); Rev. Stat. Supp. II (1892-1901)). Those pro-
visions were later codified in Title 43 of the United
States Code, but repealed by various enactments. See
43 U.S.C. 671 et seq. Relevant provisions are set out
in the appendix to this petition. See App., infra,
83a-84a.
STATEMENT
In 1982, the Department of the Interior's Bureau
of Land Management (BLM) conducted an investiga-
tion of certain land masses in a stretch of the Colo-
rado River in the State of Colorado and concluded
that some of those land masses constituted previously
unsurveyed islands that are part of the public do-
main. Respondents, who own land bordering the
Colorado River, challenged the BLM's determination,
claiming that the federal patents that had originally
conveyed the riparian land into private ownership
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3
had also conveyed the disputed acreage. See App.,
infra, 15a-17a, 18a-38a. The Interior Board of Land
Appeals (IBLA) rejected respondents' claims, hold-
ing that the previously unsurveyed islands at issue
remain under federal ownership. Id. at 39a-67a. The
United States District Court for the District of Colo-
rado affirmed the IBLA's factual determinations, but
concluded as a matter of law that the federal patents
granting title to surveyed riparian lands also granted
title to unsurveyed islands within the river. Id. at
68a-80a, The United States Court of Appeals for the
Tenth Circuit affirmed the district court's decision.
Id. at 1a-14a.
1. Since the formation of the Union, our Nation
has faced important questions concerning the acquisi-
tion, measure, and disposition of the public domain.
After the Declaration of Independence, the newly de-
clared States asserted competing claims to the "West-
ern Territory," and they were able to ratify the
Articles of Confederation only after New York, Con-
necticut, and Virginia agreed to cede most of their
western land claims. See B.H. Hibbard, A History
of the Public Land Policies 7-11 (1939). The Con-
tinental Congress recognized that ceded lands com-
prised its chief asset and that the national interest
would be advanced if those lands were settled. See
id. at 32-55. See also, e.g., C.A. White, A History
of the Rectangular Survey System 9-15 (1983); R.M.
Robbins, Our Landed Heritage 3-11 (2d ed. 1976);
3 J. Story, Commentaries on the Constitution 1310
(1833).
In 1784, the Continental Congress appointed a com-
mittee led by Thomas Jefferson to examine how the
ceded western lands should be administered: See 7
The Papers of Thomas Jefferson 147 (J.P. Boyd ed.,
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4
1953) [hereinafter Jefferson Papers]. Jefferson had
prior experience in the development of a Land Office
for the Commonwealth of Virginia, see 2 Jefferson
Papers 133-154, and he was deeply interested in the
future of western lands, see 6 Jefferson Papers 581-
617. The Jefferson committee proposed that the pub-
lic land be surveyed and divided into contiguous
rectangles, and then subdivided and made available
for public purchase and settlement. See Report of a
Committee to Establish a Land Office (Apr. 30, 1784)
(reprinted in 7 Jefferson Papers 140-147); see also
26 J. Continental Gong. 324-330 (1784). The com-
mittee recognized that survey before sale would re-
duce the prospect of overlapping claims, simplify land
records, and provide a fair system of disposition.
See C.A. White, supra, at 11.
Soon after the Jefferson committee issued its re-
port, Jefferson left on a diplomatic mission to Eu-
rope (7 Jefferson Papers 2), and the Continental
Congress considered the committee's recommendations
in his absence. See 28 J. Continental Cong. 114, 264,
298-302 (1785). The Congress ultimately adopted
"An Ordinance for ascertaining the mode of dis-
posing of Lands in the Western Territory." Id. at
375-381. The so-called Land Ordinance of 1785
adopted the Jefferson committee's basic concept of a
rectangular survey system, which has since provided
the basic framework for determining the boundaries
of the public domain and remains largely in place
today. See C.A. White, supra, at 11-15; R.M. Rob-
bins, supra, at 7-8; B.H. Hibbard, supra, at 37-41;
see also Papasan v. Allain, 478 U.S. 265, 268-269 &
n.3 (1986); 43 U.S.C. 751 et seq. 1.
___________________(footnotes)
1 The Land Ordinance of 1785 provided that the Geogra-
pher of the United States would direct surveyors to establish
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5
The Constitution of the United States, which was
proposed by the constitutional convention two years
later, vested in Congress the power "to dispose of
and make all needful Rules and Regulations respect-
ing the Territory or other Property belonging to the
United States." U.S. Const. Art. IV, 3, Cl. 2. Fol-
lowing ratification of the Constitution, Congress con-
tinued the practice of disposing of public land by
clearing Indian title, identifying and dividing the
land through rectangular survey, and offering it for
public sale. See, e.g., Act of May 18, 1796, ch. 29,
1 Stat. 464; Act of May 10, 1800, ch. 55, 2 Stat. 73;
Act of Mar. 26, 1804, ch. 35,2 Stat. 277.
The Jefferson committee's innovative concept of a
cadastral survey system became a monumental un-
dertaking during the nineteenth century. Congress
extended the boundaries of the United States through
various means, including the Louisiana Purchase, the
Florida Purchase, the annexation of Texas, the ac-
quisition of the Oregon Territory, the Mexican ces-
sion and sale of territory, and the Alaska Purchase,
see B.H. Hibbard, supra, at 14-31, which led to a
___________________(footnotes)
a system of rectangular boundaries for all public land that
was no longer subject to Indian claims. Beginning at the
Ohio River, the surveyors would divide and mark the public
land into contiguous six-square-mile townships, unless aquatic
bodies or Indian boundaries required the creation of frac-
tional townships. The Geographer would prepare plats that
would depict the township boundaries and divide them by
protraction into 36 one-square-mile lots (except where frac-
tional lots were necessary). The lots (now known as sections)
would then be offered for public sale at a price of not less
than one dollar per acre plus survey costs. The United States
would retain four lots out of every township and the right
to one-third of all minerals. In addition, one central lot in
every township would be set aside for public schools. See C.A.
White, supra, at 11-15. Compare 43 U.S.C. 751 et seq.
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6
six-fold increase in the size of the public domain,
see P. W. Gates & R. W. Swenson, History of Public
Land Law Development 86 (1968). Congress di-
rected that those lands should be included in the
rectangular survey system, see e.g., C.A. White,
supra, at 51-57, and it provided through various laws
that the land, once surveyed, would be available for
purchase or other means of acquisition, see, e.g., Act
of Apr. 24, 1820, ch. 51, 3 Stat. 566.
2. From 1797 to 1910, a period that embraced the
most significant part of the western migration, the
federal government relied on contract surveyors, who
were paid by the mile surveyed, to identify and sur-
vey the public domain in preparation for disposition
and settlement. See C.A. White, supra, at 34, 186,
231. As the undertaking progressed, the federal gov-
ernment refined surveying practices through formal
and informal announcements and through the issu-
ance of a Manual of Surveying Instructions, which
was published in 1855 and has been revised period-
ically since that time. See BLM, Manual of Survey-
ing Instructions (1973) ; C.A. White, supra, at 231-
764 (reproducing surveying instructions from 1804
through 1910).
Despite that guidance, the surveying practices
were not always certain or uniform, and surveyors
did not always understand or fastidiously follow the
guidance given them. See, e.g., C.A. White, supra,
at 100-101, 119-126. In addition, lands that were
not likely to be purchased (such as mountain peaks,
small islands, and other lands unsuitable for cultiva-
tion) were typically not surveyed, particularly if the
survey would entail great cost. See, e.g., id. at 81,
126-127, 134-135, 154; see also Act of Mar. 3, 1853,
ch. 145, 3, 10 Stat. 245 (directing that sections in
California that are "unfit for cultivation" should not
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7
be surveyed). For those and other reasons, the pub-
lic domain is not completely surveyed, and the BLM
continues to conduct original surveys, as well as re-
surveys, of public lands. The Federal Land Policy
and Management Act of 1976 (FLPMA), 43 U.S.C.
1701 d seq., directs the Secretary of the Interior to
complete the surveying process " [a]s funds and man-
power are made available." FLPMA 201, 43
U.S.C. 1711; see 43 C.F.R. Pt. 9180.
3. This case concerns a dispute over six islands in
a 15-mile, non-navigable stretch of the Colorado
River between Glenwood Springs and Grand Junc-
tion, Colorado. The government conducted its first
surveys in the general vicinity between 1883 and
1887, but the area immediately surrounding the spe-
cific parcels in question was not surveyed until 1889
and 1891. The surveyors meandered the riparian
upland, but they did not meander the islands in the
adjacent river. Hence, the islands were not surveyed.
They were mentioned, however, in the surveyors' field
notes and sketched onto the accompanying plat,
which created a reference for future survey and
disposition. See App., infra, 40a-41a.
Between 1892 and 1894, various private parties
purchased the fractional riparian lots that are rele-
vant to this dispute. The United States sold the land
under the Act of Apr. 24, 1820, as amended, See
Rev. Stat. 2353 et seq. (1875 cd.); Rev. Stat.
Supp. I (2d ed. 1874-1891); Rev. Stat. Supp. II
(1892-1901). The law in effect at the time of sale
set a minimum purchase price of $1.25 per acre.
Rev. Stat. 2357 (1875 ed.). The federal patents
that conveyed the land identified the purchased prop-
erty by reference to the fractional lot descriptions
contained in the official plat, which was created
through the 1889 and 1891 surveys. The patents
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8
specified the number of acres contained in each pur-
chased lot, measured to one-hundredth of an acre.
The patents did not include unsurveyed islands
within that acreage specification. See App., infra,
40a-41a (noting that the islands were not meandered
by the original surveyors).
4. In 1982, the BLM commenced an investigation
to review the results of the 1889 and 1891 surveys
and to determine ownership of 22 land masses in
that reach of the Colorado River. The investigation
was prompted by inquiries from local landowners and
others who were interested in developing mineral re-
sources (including sand, gravel, and natural gas) in
the area. The BLM reviewed the original survey rec-
ords and other sources, conducted a thorough field
examination, and determined that nine of the land
masses, which had not been meandered in the orig-
inal surveys, were islands that have been in con-
tinuous existence. since that time. The BLM surveyed
the islands, announced its intention to file plats iden-
tifying those islands as unconveyed public lands, and
denied protests from the owners of adjacent riparian
tracts. See App., infra, 15a-17a, 41a-42a; see also
United States v. Lemon, 632 F. Supp. 431 (D. Colo.
1986 ) (allowing government surveyors entry to con-
duct surveys).
Respondents, who own riparian land as successors
of the nineteenth century patentees, sought adminis-
trative review of the BLM's decision. See 43 C.F.R.
4.1 et seq. The IBLA referred the matter to an ad-
ministrative law judge (ALJ), who ruled that the
six land masses that respondents had placed in issue
were not islands at the time of the original survey,
but rather were impermanent parts of the non-
navigable stream's bed. The ALJ concluded that the
patents gave the riparian owners title to those por-
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9
tions of the streambed to the mid-point of river. See
App., infra, 18a-38a. The IBLA reversed the ALJ's
decision. Id. at 39a-67a. The IBLA examined the
record, including a stipulation by the parties, and
concluded that the parcels, which ranged in size from
7 to 67 acres, id. at 40a n.1, "were islands, not mere
topographic features, at the time of the original sur-
veys," id. at 65a. It continued:
A consequence of that holding is that the failure
of the original surveyors to survey the islands
in question must either have been the result of
an error or simply the consequence of an official
or unofficial Government policy not to survey
islands unsuitable for cultivation. In either case,
their failure to survey the islands did not divest
the United States of title to those islands.
Id. at 65a-66a (footnotes omitted). The IBLA ac-
cordingly rejected the riparian owners' challenge to
the BLM's survey. Id. at 66a-67a.
5. The riparian landowners sought judicial review
of the IBLA's decision. 2. The district court ruled that
___________________(footnotes)
2 The district court determined that it had jurisdiction
under 28 U.S.C. 1331. App., infra, 69a. Because the Plain-
tiffs' suit challenged the United States' title to the islands
in dispute, the district court should have also relied on the
Quiet Title Act of 1972 (QTA), 28 U.S.C. 2409a, as a basis
for jurisdiction. The QTA provides "the exclusive means by
which adverse claimants [can] challenge the United States'
title to real property." Block V. North Dakota, 461 U.S. 273,
286 (1983). Although the plaintiffs failed to invoke the
QTA, their suit satisfied the pertinent requirements of the
statute. It properly named the United States as a party, 28
U.S.C. 2409a(a), was sufficiently specific with respect to the
lands in question, 28 U.S.C. 2409a(d), and was filed within
the QTA's limitations period, 28 U.S.C. 2409a(g). The dis.
trict court was therefore lawfully vested with jurisdiction
over the plaintiffs' suit.
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10
"the IBLA's decision that the land masses in question
were 'islands' at the time of the original survey is
undoubtedly supported by substantial evidence in the
record." App., infra, 74a. The court nevertheless
concluded that the riparian landowners held title to
the islands. It reasoned that, "if the government
conveys riparian land along non-navigable waters and
there is an absence of evidence whether the govern-
ment also intended to convey title to islands located
within the river, title to the islands passes according
to the law of the state in which the property is
located.'" Id. at 75a-76a.
The court found "no clear evidence that the gov-
ernment intended to reserve the islands when it con-
veyed the riparian land," and it concluded that, as a
result, "ownership of the islands must be determined
in accordance with Colorado law." App., infra, 79a.
The court acknowledged that Colorado law does not
squarely address the issue. The court nevertheless
held that "it is reasonable to conclude" that Colorado
would follow what the court understood to be the
"common law rule" that "grants of land on a non-
navigable river entitle the grantee to all islands lying
between the mainland and the thread of the stream."
Id. at 79a-80a.
The court of appeals affirmed. App., infra, 1a-14a.
It concluded that "[n]othing in the record clearly
reveals the government's intent with respect to pat-
ents affecting the islands at issue." Id. at 8a. The
court acknowledged that" the extent of a federal grant
"is necessarily a federal question," id. at 9a (quoting
Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 320
(1973)), and that normally "any ambiguity in a
grant is to be resolved favorably to a sovereign
grantor," App., infra, 8a-9a (quoting Great N. Ry.
v. United States, 315 U.S. 262, 272 (1942)). The
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11
court nevertheless concluded that those principles do
not control the issue here.
The court of appeals instead ruled that in the
"select area of cases" involving riparian land, "fed-
eral law directs a court to look to state law to resolve
the dispute." App., infra 9a (citing Oregon v.
Corvallis Sand & Gravel Co., 429 U.S. 363, 378
(1977)). The court of appeals accordingly deter-
mined that it should "'look to Colorado state law to
ascribe rights in the property at issue here." App.,
infra, 11a. It agreed with the district court that the
Colorado legislature and courts had not addressed the
issue. It nevertheless concluded that Colorado would
recognize the riparian landowners, rather than the
United States, as owners of the islands. Ibid.
REASONS FOR GRANTING THE PETITION
This case presents an important question of public
land law that has generated a serious and irreconcil-
able conflict among the courts of appeals. The Con-
stitution vests Congress alone with the power to dis-
pose of the public domain. Congress has consistently
elected to provide for the survey of public lands, in-
cluding islands, before placing them in private hands.
Until recently, it was clear under federal law govern-
ing surveys of public land that the United States
retained ownership of unsurveyed islands. See Moss
v. Ramey, 239 U.S. 538 (1916) ; Scott v. Lattig, 227
U.S. 229 (1913); R.A. Mikelson, 26 I.B.L.A. 1
(1976); Emma S. Peterson, 39 Pub. Lands Dec. 566
(1911); BLM, Manual of Surveying Instructions
3-122 (1973). A series of court of appeals deci-
sions, culminating in this case, has called that prin-
ciple into question. Those, decisions divest the. United
States of public land that the government did not
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12
sell, and they grant title to private parties who did
not pay for its purchase.
1. The court of appeals' decision raises an impor-
tant issue of federal land management that will af-
fect the government's oversight of the public domain.
Congress recognized in the Federal Land Policy and
Management Act of 1976 (FLPMA) that existing
surveys have not identified all of the government's
land holdings, and it directed the Secretary of the
Interior to locate and establish the boundaries of
public lands, such as small islands, that remain
unsurveyed. FLPMA 201, 43 U.S.C. 1711. Con-
gress instructed the Secretary to undertake those
surveys because it understood that unsurveyed lands
are a component of the public domain that remain
subject to Congress's control. 3. If Congress is mis-
taken, then it should know now, before it takes
further action with respect to the retention or dis-
position of the affected lands. 4
The uncertainty resulting from the court of ap-
peals' decision also is likely to have significant prac-
tical consequences with respect to land-title litigation,
where the law should be certain. See Arizona v. Cali-
fornia, 460 U.S. 605, 620 (1983). The Department
of the Interior estimates that the contiguous States
___________________(footnotes)
3 See FLPMA 211, 43 U.S.C. 1721 (authorizing the Secre-
tary of the Interior to convey unsurveyed islands to the
States and their political subdivisions). See also 43 C.F.R.
9185.2-3.
4 See, e.g., Minnesota Public Lands Improvement Act of
1990, Pub. L. No. 101-442, 104 Stat. 1020 (conveying origi-
nally unsurveyed lands, including unsurveyed islands, to the
State of Minnesota); Michigan Public Lands Improvement
Act of 1988, Pub. L. No. 100-537, 102 Stat. 2711 (conveying
originally unsurveyed lands, including unsurveyed islands,
to the State of Michigan).
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13
(excepting Texas and the States that comprised the
original thirteen colonies) contain approximately
11,000 unsurveyed islands that, from the United
States' perspective, continue to remain within the
public domain. As this case demonstrates, many of
those islands, which were once considered worthless
as agricultural land, are now recognized as valuable
for purposes of mineral development, recreation, or
wildlife propagation.
The United States has consistently maintained
that it owns unsurveyed public lands, including un-
surveyed islands. See, e.g., BLM, Manual of Survey-
ing Instructions 3-122 (1973). The court of
appeals' decision casts a cloud on the United States'
title in the western States, and it will encourage
riparian owners-including private parties, States,
and Indian Tribes-to claim ownership of those
islands and to attempt to exclude the federal govern-
ment or its successors from those lands. Conse-
quently, disputes like the one here can be expected
to arise with greater frequency. Given the need for
certainty and predictability in questions of property
ownership, it is especially appropriate for the Court
to resolve the issue now.
2. The question presented here is ripe for this
Court's resolution because it has generated a square
conflict among the circuits that has unsettled the
Court's own precedents. Until recently, this Court's
decisions in Scott v. Lattig, supra, and Moss v.
Ramey, supra, had controlled the question of owner-
ship of unsurveyed islands. The court of appeals'
decision erroneously puts the vitality of those prece-
dents into doubt.
In Scott v. Lattig, a riparian landowner named
Lattig brought suit in an Idaho state district court
to quiet title to Poole Island, a 138-acre unsurveyed
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14
island located in a navigable portion of the Snake
Rivers. 5. The Idaho district court ruled that Lattig
owned the island by virtue of his patent to riparian
land, and the Idaho Supreme Court affirmed. 17
Idaho 506 (1910). This Court reversed. The Court
stated that "it is manifest that the island, if in ex-
istence at the time of the survey in 1868, was then
public land of the United States." 227 U.S. at 241.
The Court then ruled that the United States' patent
of surveyed riparian land on the banks of the river
did not convey the unsurveyed island. Id. at 241-
244.6
The Court distinguished prior cases vesting
riparian owners with title to certain offshore forma-
tions. It explained that those cases involving "so-
___________________(footnotes)
5 The riparian lands were surveyed in 1868, but the island
was neither surveyed nor mentioned in the field notes or plat.
Lattig acquired his riparian land by succession to an 1894
patent. The defendant, Scott, settled on the island in 1904,
and when the island was surveyed in 1906, he filed an applica-
tion for a homestead. 227 U.S. at 239-241.
6 The Court first ruled that the surveyor's apparent error
in omitting the island from the 1868 survey "did not divest
the United States of the title or interpose any obstacle to
surveying it at a later time." 227 U.S. at 241-242. The Court
next ruled that Idaho's admission as a State in 1890 also had
no effect on the United States' title, explaining that, while the
beds of navigable rivers pass to the State upon admission,
id. at 242-243, the island "was not part of the bed" and
"therefore remained the property of the United States and
subject to disposal under its laws," id. at 244. Finally the
Court recognized that the disposal of the riparian land did
not alter the United States' title, citing the established rule
that "proprietors of lands bordering on navigable rivers,
under titles derived from the United States, hold only to the
stream." Ibid. (quoting Railroad Co. v. Schurmeir, 74 U.S.
(7 Wall.) 272, 287 (1868)).
---------------------------------------- Page Break ----------------------------------------
15
called islands" were limited to offshore land masses
that did not actually qualify as islands. See 227 U.S.
at 244. 7. The Court quoted with approval a passage
from Whitaker v. McBride, 197 U.S. 510, 515 (1905)
-which, the Court noted, involved "a small island,
in a non-navigable river," 227 U.S. at 245-stating
that
the Government, as original proprietor, has the
right to survey and sell any lands, including
islands in a river or other body of water; that if
it omits to survey an island in a stream and re-
fuses, when its attention is called to the matter,
to make any survey thereof, no citizen can over-
rule the action of the Department, assume that
the island ought to have been surveyed, and pro-
ceed to occupy it for the purposes of homestead
or preemption entry.
227 U.S. at 245.
Three years later, the Court applied its rationale
in Scott v. Lattig to a virtually identical situation in
Moss v. Ramey, supra. Moss involved a question of
ownership of a 120-acre island in the Snake River.
The Court explained that "[t]he descriptive terms in
the patents" embraced the lots abutting on the river,
as shown on the plat, but not this [unsurveyed]
island lying between the lots and the thread of the
stream," 239 U.S. at 546. The Court distinguished
___________________(footnotes)
7 The Court distinguished Grand Rapids & I.R.R. v. Butler,
159 U.S. 87 (1895), on the ground that "the so-called island"
in question appeared to be "a low sand bar" that was in fact
submerged land, and it distinguished United States v.
Chandler-Dunbar Water Power Co., 209 U.S. 447 (1908), on
the ground that the islands in question were "little more than
rocks rising very slightly above the level of the water" that
were treated as part of the streambed. See Scott, 227 U.S.
at 244.
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16
Moss from situations involving submerged lands,
noting that the island was of "stable formation."
Ibid. Accord Texas v. Louisiana, 410 U.S. 702, 713
(1973); Mission Rock Co. v. United States, 109 F.
763, 769-770 (9th Cir. 1901), aff'd, 189 U.S. 391
(1903).
The Court's decisions in Moss v. Ramey and Scott
v. Lattig laid down a clear and certain rule: A fed-
eral patent conveying surveyed riparian lands does
not convey unsurveyed islands in the adjacent stream. 8.
In more modern times, two federal courts of appeals
have followed those decisions and held that a federal
patent of riparian land does not convey unsurveyed
islands. See Ritter v. Morton, 513 F.2d 942 (9th
Cir.), cert. denied, 423 U.S. 947 (1975); United
States v. Severson, 447 F.2d 631 (7th Cir. 1971),
cert. denied, 404 U.S. 1039 (1972). However, two
other courts of appeals (in addition to the Tenth
Circuit) have ruled that Scott is not controlling and
have reached a contrary result. See Wolf v. United
States, 967 F.2d 222, reh'g denied, 974 F.2d 702
(6th Cir. 1992); Bourgeois v. United States, 545
F.2d 727 (Ct. Cl. 1976).
The conflict is a serious one because it places in
opposition the two courts of appeal-the Ninth Cir-
cuit and the Tenth Circuit-that embrace the "eleven
contiguous Western States" (FLPMA 103(o), 43
U.S.C. 1702(o)) and that most commonly face ques-
tions of public land law. Moreover, the various
courts have addressed the issue in fundamentally
different ways:
___________________(footnotes)
8 Both before and after this Court's decisions, state supreme
courts followed the rule set out in those cases. See Bode v.
Rollwitz, 199 P. 688 (Mont. 1921); State v. Nolegs, 139 P.
943 (Okla. 1914); Steinbuchel v. Lane, 51 P. 886 (Kan. 1898).
---------------------------------------- Page Break ----------------------------------------
17
a. In the first of the appellate decisions cited
above, United States v. Severson, the United States
brought suit to quiet title to portions of an island
and a former island, comprising about 275 acres, in
the Wisconsin reach of the Mississippi River. The
defendants claimed that they had received title to
those unsurveyed islands as a consequence of the
grant of riparian land. The district court ruled that
the United States owned the islands, 309 F. Supp.
915 ( W.D. Wis. 1970), and the Seventh Circuit af-
firmed, 447 F.2d 631 (1971).
The Seventh Circuit agreed with the district court's
determination that the islands were in existence at
the time the patent was issued and that the scope
of the patent's conveyance presented a question of
federal law. 447 F.2d at 633-634. The Seventh Cir-
cuit concluded that the controlling legal principles
were set out in this Court's decision in Scott, see 447
F.2d at 635, stating:
Applying the explanations in Scott v. Lattig
to our present case, the unsurveyed islands, exist-
ing at the time of statehood, remained the prop-
erty of the United States, and although at the
time of the patents, Wisconsin law operated to
pass title to the riverbed to the patentees, Wis-
consin law could not and the patents did not
convey to the patentees the unsurveyed islands.
Ibid. See also Blask v. Sowl, 309 F. Supp. 909
(W.D. Wis. 1967) (ejectment action involving the
same property).
b. In the next case, Ritter v. Morton, an owner
of land along the Idaho reach of the Snake River
claimed ownership of three unsurveyed islands rang-
ing in size from .84 to 8.99 acres. The district court
ruled that the riparian owner was entitled to the
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18
islands because they were "east of the water course
of the Snake River, which constitutes the actual
boundary of the land conveyed by the patent." See
513 F.2d at 945. The Ninth Circuit reversed that
ruling. Id. at 949-951.
The Ninth Circuit held that federal law governed
the issue, 513 F.2d at 946, and it concluded that this
Court's decision in Scott v. Lattig was "directly
applicable to our case, both for its legal statements
and for its factual similarity," id. at 948. The Ninth
Circuit ultimately concluded, based on the "totality"
of the factual record, that the United States held
title to the islands. 9
___________________(footnotes)
9 Although the Ninth Circuit reached the correct result, it
misunderstood Scott's holding. The court correctly recognized
at the outset of its discussion that the water course itself,
rather than the surveyor's meander lines, normally defines
the riparian boundary of a fractional lot. 513 F.2d at 946.
See, e.g., Schumeir, 74 U.S. (7 Wall.) at 286-287. As the
Ninth Circuit noted, sometimes "special circumstances" dic-
tate treating meander lines as a boundary. It concluded that
Scott had invoked that principle and treated a meander line
as a "strict boundary" that excluded islands between that
line and the thread of the river. 513 F.2d at 948. Applying
that interpretation of Scott, the Ninth Circuit evaluated the
riparian owner's claim in terms of the location of the meander
line and concluded, based on the "totality" of the record, that
the United States held title to the islands. Id. at 949-951.
Scott, however, did not treat meander lines as a "strict
boundary" in deciding that the unsurveyed islands were pub-
lic lands. See 227 U.S. at 244 (noting that the riparian
owner holds title "to the stream"). It rested on the more
straightforward principle that the government had not sur-
veyed the island and therefore could not be deemed to have
conveyed it. Id. at 241-242 ("the error in omitting it from
the survey did not divest the United States of the title or
interpose any obstacle to surveying it at a later time"); id.
at 245 (a citizen cannot "assume that the island ought to
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19
c. The third case, Bourgeois v. United States, in-
volved title to a 6.76-acre island in Michigan's non-
navigable Jewel Lake. The United States surveyed
the land around Jewel Lake in 1846, and it patented
that land in 1866. The plaintiff purchased a littoral
lot in 1939 as a successor to one of the original pat-
entees. The government surveyed the island in 1958.
It thereafter posted the island as public land, and
the plaintiff brought suit seeking compensation for
a taking by the government, claiming that she re-
ceived the island as a successor to the 1866 patent.
On cross-motions for summary judgment, the Court
of Claims ruled that she was entitled to recover. 545
F.2d at 728-729.
The Court of Claims recognized that the scope of
the 1866 patent presented a federal question and that
this Court held in Scott v. Lattig that the United
States retained title to an unsurveyed island. The
Court of Claims distinguished Scott, however, on the
ground that it involved a navigable river. The court
stated that when disputes arise over the beds of non-
navigable waterways, "federal law looks to the law
of the state in which the land lies." 545 F.2d at 730
(citing Oklahoma v. Texas, 258 U.S. 574, 594-595
(1922)). The court concluded:
Given the choice between the navigable water
island cases [e.g., Scott] and the non-navigable
water bed cases, the best analogy is the non-
navigable water bed law. To reach this result
___________________(footnotes)
have been surveyed, and proceed to occupy it for the purposes
of homestead or preemption entry"). At bottom, the Ritter
case, like Scott, involved unsurveyed islands, and the Ninth
Circuit was correct in following Scott, even if it misunder-
stood Scott's rationale.
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20
we concentrate on the fact of accessibility, par-
ticularly with reference to the time of the grant.
545 F.2d at 731 (emphasis in original). The court
reasoned that if the United States conveys the shores
of a non-navigable body of water without preserving
a means of access to an unsurveyed island, the United
States' rights should be resolved under state law,
which in that case vested ownership in the owner
of the shore. Ibid. 10.
d. The fourth case, Wolff v. United States, con-
fused the issue still further. The plaintiffs claimed
title to a .90-acre unsurveyed island in Arbutus Lake,
located within the State of Michigan. They based
their claim on an 1871 patent that conveyed littoral
land. The district court concluded that the plaintiffs
owned the island, 770 F. Supp. 1205 (W.D. Mich.
1991 ), and the Sixth Circuit affirmed, 967 F.2d 222,
reh'g denied, 974 F.2d 702 (1992).
The Sixth Circuit concluded that the scope of the
federal patent should be evaluated according to the
law of the State in which the lands lie. 967 F.2d at
224 (citing, among other cases, Oklahoma v. Texas,
supra; Whitaker v. McBride, supra; and Hardin v.
Jordan, 140 U.S. 371, 384 (1891)). The court dis-
tinguished Moss v. Ramey and Scott v. Lattig on the
basis that they involved much larger islands and that
___________________(footnotes)
10 The Court of claims overlooked that Scott had indicated,
by virtue of its reliance on Whitaker v. McBride, that the
same principles would apply in the case of an island in non-
navigable waters. Scott, 227 U.S. at 244-245. As the Court
later recognized in Moss, the controlling issue is whether the
land mass is an island of "stable formation" and whether the
government "treat[s] it as public land," 239 U.S. at 546-
not whether the island is located in navigable or non-navigable
waters.
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21
it was therefore reasonable to conclude that the United
States did not intend to convey them. The court saw
"no reason to suppose that the United States intended
to retain the island" in Arbutus Lake, and it there-
fore ruled that, under Michigan law, the island passed
to the riparian owners. 967 F.2d at 226. It con-
cluded, contrary to the Court of Claims' decision in
Bourgeois, that the same result would obtain whether
the waterway was navigable or non-navigable. Id.
at 226 & n.3. 11.
3. As the foregoing discussion indicates, this
Court's clear pronouncements in Moss v. Ramey and
Scott v. Lattig, although adhered to by the Seventh
and Ninth Circuits, have been eroded by recent deci-
sions of other courts of appeals, and the law govern-
ing unsurveyed islands has now fallen into serious
disarray. The Tenth Circuit's decision in this case
confuses the matter still further. As we explain be-
low, that court failed to appreciate three fundamental
principles that govern federal conveyances of public
___________________(footnotes)
11 The government petitioned for rehearing in Wolff, but the
Sixth Circuit reaffirmed its prior ruling. 974 F.2d 702, 703-
706 (1992). The court also distinguished Severson, Ritter,
and a prior Sixth Circuit case, United States v. Boyd, 458
F.2d 1252 (1972). The court of appeals concluded that
Severson involved islands that "were large enough relative
to the patented littoral lots to create an inference that the
United States did not intend to divest itself of the islands
when it conveyed the littoral land." 974 F.2d at 705. It
distinguished Ritter, which involved islands comparable in
size to the lake Arbutus Island, on the ground that the
"islands had been left unsurveyed due to a surveyor's error."
Ibid. And it distinguished Boyd, which cited Scott v. Lattig
approvingly, on the ground that "the failure to survey the
island was a mistake" and that the island "might have been
of some value to the government." Ibid.
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22
land to private parties: (a) Congress has the sole
power to determine the conditions under which public
lands shall be conveyed; (b) Congress has consistently
specified that public land cannot be conveyed into
private ownership until the land has been identified
and marked in accordance with the government's rec-
tangular survey system; and (c) if there are ambi-
guities over the scope of the conveyance, they are
resolved in favor of the sovereign. The practical
effect of the court's decision is to convey public land
to private parties who did not pay for its purchase.
a. Since the Nation's beginnings, Congress has had
exclusive power over the public domain. The Framers
of the Constitution explicitly granted Congress that
power through Article IV of the Constitution, which
provides in pertinent part:
The Congress shall have Power to dispose of
and make all needful Rules and Regulations re-
specting the Territory or other Property belong-
ing to the United States.
U.S. Const. Art. IV, 3, Cl. 2. 12.
As this Court has explained, Article IV grants
Congress "plenary power" to retain and dispose of
public lands. Utah Div. of State Lands v. United
States, 482 U.S. 193, 201 (1987). Accord, e.g., Cali-
fornia Coastal Comm'n v. Granite Rock Co., 480 U.S.
___________________(footnotes)
12 That principle predated the Constitution. The Continental
Congress recognized in 1780 that unappropriated lands ceded
to the Unite-d States "shall be granted and settled at such
times and under such regulations as shall hereafter be agreed
on by the United States in Congress assembled, or any nine
or more of them." 18 J. Continental Cong. 915 (1780). See
also 26 J. Continental Cong. 277 (1784).
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23
572, 580 (1987) ; Gibson v. Chouteau, 80 U.S. (13
Wall. ) 92, 99 (1871). Both the Executive and Judi-
cial Branches are obligated to respect Congress's di-
rections with regard to grants of public lands. See,
e.g., Lee Wilson & Co. v. United States, 245 U.S. 24,
32 (1917); Easton v. Salisbury, 62 U.S. (21 How.)
426, 431 (1858).
This Court has accordingly recognized that the
construction of a public land grant rests on federal
law. The Court articulated that principle in United
states v. Oregon, 295 U.S. 1 (1935), stating:
The laws of the United States alone control the
disposition of title to its lands. * * * The con-
struction of grants by the United States is a fed-
eral not a state question, * * * and involves the
consideration of state questions only insofar as
it may be determined as a matter of federal
law that the United States has impliedly adopted
and assented to a state rule of construction as
applicable to its conveyances. * * *
Id. at 27-28. Accord California v. United States, 457
U.S. 273, 278-283 (1982); Hughes v. Washington,
389 U.S. 290, 292-293 (1967) .
b. Congress has provided that private parties may
acquire legal ownership of public lands through a
federal patent, "which, under the laws of Congress,
passes the title of the United States." Gibson v.
Chouteau, 80 U.S. (13 Wall. ) at 102; see Wilcox v.
Jackson, 38 U.S. (13 Pet.) 498, 516-517 (1839).
Since the framing of the Constitution, Congress has
consistently followed the practice-first laid down
by the Continental Congress in the Land Ordinance
of 1785-of requiring that public lands be surveyed
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24
before they are conveyed by patent to private
parties. 13.
This Court recognized the significance of the sur-
vey requirement as early as 1827, explaining that
public lands "are first surveyed, then advertised at
public auction, and then, whatever remains unsold
at public auction, is offered at private sale to the
first applicant, at stipulated prices." Chotard v.
Pope, 25 U.S. (12 Wheat.) 586, 588 (1827) ; see
Eldred v. Sexton, 86 U.S. (19 Wall.) 189, 195
(1873) ; Brown's Lessee v. Clements, 44 U.S. (3
How.) 650, 663 (1845). The Court has consistently
required compliance with the congressionally pre-
scribed mechanism for sale, stating:
No portion of the public domain, unless it be in
special cases not affecting the general rule, is
open to sale until it has been surveyed and an
approved plat of the township embracing the
land has been returned to the local land office.
Buxton v. Traver, 130 U.S. 232, 235 (1889). The
Court has accordingly held in a variety of contexts
that, until surveyed, a tract of public land remains
unidentified, and therefore not subject to sale or dis-
position. See United States v. Wyoming, 331 U.S.
440, 443-444 (1947); United States v. Northern Pac.
R.R., 311 U.S. 317, 344 (1940); United States v.
Morrison, 240 U.S. 192, 199-201 (1916); United
States v. Montana Lumber & Mfg. Co., 196 U.S. 573,
577-578 (1905) ; see also Andrus v. Utah, 446 U.S.
___________________(footnotes)
13 See, e.g., Act of May 18, 1796, Ch 29, 4, 1 stat. 466;
Act of Apr. 24, 1820, ch. 51, 1, 3 Stat. 566; Act of Sept. 4,
1841 (General Preemption Act), ch. 16, 10, 5 Stat. 455;
Act of May 20, 1862 (Homestead Act), ch. 75, 1, 12 Stat.
392; Act of Mar. 3, 1891, ch. 561, 13, 26 Stat. 1100.
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25
500, 506-507 (1980) (title to school sections does not
vest in the State until surveyed). 14
Congress adopted the requirement that a survey
must precede the sale to promote a rational and uni-
form policy for disposition of public lands. As Con-
gress recognized from the outset of public land sales,
completion of a survey prior to sale provides cer-
tainty with respect to the lands actually conveyed,
reduces boundary disputes, and promotes evenhanded
distribution of public lands among the private settlers.
See C.A. White, supra, at 11. A survey is an indis-
pensable first step in disposition because it deter-
mines and marks the boundaries of the lands that are
available for sale. As the Court has explained: "A
survey of public lands does not ascertain boundaries;
it creates them." Cox v. Hart, 260 U.S. 427, 436
(1922 ) (emphasis in original).
Federal patents specifically rely on the official sur-
vey to locate and define exactly what upland the
federal patent conveys. See Home v. Smith, 159 U.S.
40, 45 (1895) ("The patent conveys only the land
which is surveyed, and when it is clear from the plat
and the surveys that the tract surveyed terminated
at a particular body of. water, the patent carries no
land beyond it." ) ; accord Niles v. Cedar Point Club,
175 U.S. 300, 305-306 (1899). In addition, the sur-
vey ascertains the precise number of acres purchased,
which the United States must know at the time it
___________________(footnotes)
14 In the past, Congress occasionally allowed private parties
to enter public lands prior to survey. Even then, a settler who
entered the land could obtain legal title only through a patent,
and the settler could not obtain a patent until the government
completed a survey of the settled lands. See, e.g., Scott v.
Lattig, 227 U.S. at 240-241; C.A. White, supra, at 100,
132, 155.
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26
issues the patent in order to determine the total price
for the land and to ensure compliance with statutory
acreage restrictions. 15
c. The principle that the survey defines what land
is conveyed is especially significant in the light of
the federal rules governing the construction of fed-
eral patents. This Court has repeatedly recognized
the established rule that land grants are con-
strued favorably to the Government, that noth-
ing passes except what is conveyed in clear lan-
guage, and that if there are doubts they are
resolved for the Government, not against it.
Watt v. Western Nuclear, Inc., 462 U.S. 36, 59
(1983); see, e.g., Andrus v. Charlestone Stone Prods.
Co., 436 U.S. 604, 617 (1978) ; United States v.
Union Pac. R.R., 353 U.S. 112, 116 (1957) ; Caldwell
v. United States, 250 U.S. 14, 20 (1919); Northern
Pac. R.R. v. Soderberg, 188 U.S. 526, 530 (1903);
United States v. Arredondo, 31 U.S. (6 Pet.) 691,
728 (1832). Thus, because federal patents rely on
the official survey to identify the conveyed land, a
federal patent cannot grant private parties unsur-
veyed land.
The Court's decisions in Moss v. Ramey and Scott
v. Lattig recognize and apply that principle. As those
cases indicate, a federal patent that conveys riparian
land but fails to mention unsurveyed islands in the
___________________(footnotes)
15 Congress has traditionally sold public lands at a specified
price per acre. See Rev. Stat. 2357 (1875 ed.). In many
instances, Congress has imposed limitations on the total
acreage that may be conveyed to each qualifying entryman.
See, e.g., Act of May 20, 1862 (Homestead Act), ch. 75, 12
Stat. 392 (limiting homestead grants to 160 acres); cf. Bryant
v. Yellen, 447 U.S. 352, 368-369 (1980) (discussing acreage
limitations under the reclamation laws).
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27
adjacent stream is not "ambiguous." The patent, as
a matter of federal law, simply does not convey the
unsurveyed land. That has been the consistent under-
standing of the Executive Branch since 1824. See,
e.g., BLM, Manual Of Surveying Instructions 3-122
(1973) ; Emma S. Peterson, 39 Pub. Lands Dec. 566
(1911) ; C.A. White, supra, at 81 (quoting 1824 cor-
respondence from the Commissioner of the General
Land Office to the Surveyor General) ; see also id. at
98 (quoting similar 1839 correspondence). Indeed,
the precise terms of the patents involved here gave
the patentees no reason to believe that the patents
included the unsurveyed islands. 16
Thus, the patents under which respondents claim
are not ambiguous with respect to title to the islands.
The court of appeals thought differently, App., infra,
8a, but that supposed ambiguity should have led the
court to adhere to "the established rule that land
grants are construed favorably to the Government,"
Western Nuclear, 462 U.S. at 59, and to hold that
the United States retained title to the unsurveyed
islands. The court of appeals instead erroneously
concluded that in the "select area" of controversies
over the extent of a riparian patent, "federal law di-
rects a court to look to state law to resolve the dis-
___________________(footnotes)
16 The patents, which were issued under the Act of April 24,
1820, as amended, each conveyed a fractional surveyed section
that was identified by its rectangular survey coordinates and
the contained acreage The patents conveyed the land for
a set price per acre and measured the surveyed acreage to
within hundredths of an acre. Because the unsurveyed islands
(which have since been determined to range in size from 7 to
67 acres) had not been meandered at that time they could not
have been included in the measured acreage. Thus, the
patents indicated that each patentee paid for and received
a specific amount of land that did not include any unsurveyed
islands in the adjacent stream.
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28
pute." App., infra, 9a. The court mistakenly relied
on a series of past decisions that addressed the spe-
cial rules that apply to ownership of submerged
lands. See ibid.
The States have an historically rooted sovereign
interest in submerged land beneath inland navigable
water, which becomes property of the States upon
their admission to the Union. See, e.g., Utah Div. of
State Lands, 482 U.S. at 195-198. Congress has ac-
cordingly adhered to special principles respecting
title to inland submerged land, which are embodied
in the Equal Footing Doctrine, see ibid., and reflected
in the Submerged Lands Act of 1953, 43 U.S.C.
1301 et seq. But as this Court has explained, those
principles are not applicable to islands. The Court
stated in Texas v. Louisiana, 410 U.S. 702 (1973) :
It is the unquestioned rule that States enter-
ing the Union acquire title to the lands under
navigable streams and other navigable waters
within their borders. * * * But the rule does
not reach islands or fast lands located within
such waters. Title to islands remains in the
United States, unless expressly granted along
with the stream bed or otherwise. That was the
express holding of Scott v. Lattig, supra.
Id. at 713 (citations elided). Although the Texas
decision addressed islands in navigable waters, the
same distinction applies in the case of islands in non-
navigable waters, where the States have no claim
under the Equal Footing Doctrine to ownership of the
streambed. See Scott v. Lattig, 227 U.S. at 244-
245. 17
___________________(footnotes)
17 As Texas v. Louisiana indicates, an issue may arise in a
particular case whether the land masses in question are truly
islands of "stable formation" and not simply temporarily
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29
4. Congress is free to alter the established rule
that the United States retains title to unsurveyed
islands. Significantly, Congress has done so in only
one limited respect. In 1976, Congress authorized the
Secretary of the Interior to convey unsurveyed islands
to States or political subdivisions, explicitly adding
that "[t] he conveyance of any such island may be
made without survey." FLPMA 211, 43 U.S.C.
1721. Congress's creation of that express and limited
exception-involving only conveyances to government
entities-demonstrates Congress's understanding of
the continued vitality of Moss v. Ramey and Scott v.
Lattig. The court of appeals' decision in this case
departs from that understanding and provides an
unauthorized windfall to riparian land owners. This
Court should review that decision and restore cer-
tainty and predictability to this important body of
law.
___________________(footnotes)
exposed portions of the streambed. See Moss v. Ramey, 239
U.S. at 546. The BLM made that factual inquiry in this case,
and the IBLA, the district court, and the court of appeals
all agreed that the lands in question are islands. Because they
are islands, they should be treated like other uplands, and
they are not governed by the special rules that apply to sub-
merged lands. See ibid.; Scott v. Lattig, 227 U.S. at 244;
Mission Rock Co. v. United States, 109 F. at 769-770.
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30
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
JOHN D. LESHY
Solicitor
LYLE K. RISING
LORI R.F. MONROE
Attorneys
Department of the Interior
DREW S. DAYS, III
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
DAVID C. SHILTON
GERALD S. FISH
JACQUES B. GELIN
Attorneys
AUGUST 1995
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APPENDIX A
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 93-1298
EDWARD H. KOCH, WALTER B. LEMON, ROBERTA A.
LEMON, EDWARD N. JUHAN, ANTHONY F. ZARLENGO,
PLAINTIFFS-APPELLEES
v.
UNITED STATES OF AMERICA, DEPARTMENT OF IN-
TERIOR, INTERIOR BOARD OF LAND APPEALS (THE),
BUREAU OF LAND MANAGEMENT, DEFENDANTS-
APPELLANTS
Jan, 31, 1995
Rehearing Denied April 13, 1995
Before: TACHA and BARRETT, Circuit Judges, and
CAMPOS, Senior District Judge.*
TACHA, Circuit Judge.
This appeal results from a dispute over the owner-
ship of six land masses on the Colorado River. Plain-
___________________(footnotes)
* The Honorable Santiago E. Campos, Senior District
Judge, United States District Court for the District of New
Mexico, sitting by designation. (1a)
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2a
tiffs claim ownership of the lands through patents
granted by the United States; the United States con-
tends that the "islands" remained public lands fol-
lowing the execution of the patents. The case origi-
nated in the Interior Board of Land Appeals (IBLA),
which ultimately ruled in favor of the government.
Plaintiffs then filed suit in federal court. The district
court reversed the IBLA's decision, granting sum-
mary judgment in plaintiffs' favor. The government
now appeals. We exercise jurisdiction pursuant to
28 U.S.C. 1291 and affirm.
I. BACKGROUND
In 1889 and 1891, Peter Crutchfield and George
House surveyed the area surrounding the land masses
in question (in shorthand, the "islands"). The sur-
veyors described each island in their field notes and
identified them on the plats prepared from their notes.
Crutchfield and House never meandered the islands,
however, so that the islands remained officially un-
surveyed. The United States patented the surveyed
land adjacent to the Colorado River, incorporating
by reference the relevant plats and field notes. Plain-
tiffs now claim ownership of these islands through
the chain of title from these patents.
In 1982 the Bureau of Land Management (BLM)
announced that it would survey nine islands along
the same stretch of the Colorado River. The BLM
determined that, although those nine islands existed
at the time of the original survey, they had not yet
been meandered. The BLM announced in 1987 that
it would file in its Colorado office the survey plats
that included the islands, indicating that the BLM
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3a
believed that the islands belonged to the federal
government.
Several individuals protested the proposed filings,
asserting ownership of the islands deriving from the
patents to the lands adjacent to the river. The Colo-
rado State Director of the BLM dismissed the pro-
tests, asserting that the United States owned the
islands because they were previously unsurveyed.
Plaintiffs claiming ownership to six of the nine
islands appealed to the IBLA. 1. The parties then
entered into a number of stipulations before the Ad-
ministrative Law Judge (ALJ). Under these stipu-
lations, the parties agreed that the surveys were per-
formed properly, that this portion of the Colorado
River was non-navigable, and that the reason these
six islands were not originally surveyed was that
they were of little value. After a hearing, the ALJ
ruled in favor of plaintiffs, holding that the islands
"passed with the patent to the uplands adjacent to the
parcels." On appeal, the IBLA reversed the ALJ's
decision. It reasoned that the United States was au-
thorized to survey the lands because the islands were
well-defined bodies of public land omitted from the
original survey.
Plaintiffs appealed to federal court, asserting sub-
ject matter jurisdiction under the Administrative
Procedure Act, 5 U.S.C. 701-706. The same stipu-
lations that had been placed before the IBLA were
put into evidence in district court. While accepting
the IBLA's factual findings, the district court re-
___________________(footnotes)
1 Because persons claiming ownership to three of the islands
did not appeal to the IBLA, those islands are not a subject of
this action.
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4a
versed the IBLA's decision. The court concluded that
the land masses were islands, that state law should
govern the construction of the patents, and that state
law vested title in plaintiffs, 824 F. Supp. 996.
The government now appeals to this court, alleging
that the district court erred in failing to apply the
following rules of law: a patent from the United
States does not pass title to an island existing when
the survey was made; unsurveyed land cannot be con-
veyed; government grants must be clear and unam-
biguous; and the government cannot be bound by
estoppel.
II. STANDARD OF REVIEW
This case results from an administrative proceed-
ing. As a reviewing court, our task is to determine
the legal principles underlying the rights of riparian
land owners against the United States. Because the
legal determination does not depend on the agency's
interpretation of a statutory provision, cf. Chevron,
U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-45, 104 S. Ct. 2778, 2781-83,
81 L.Ed.2d 694 (1984), we review these questions of
law de novo, see Kapcia v. INS, 944 F.2d 702, 705
(l0th Cir. 1991); United Transp. Union v. Dole, 797
F.2d 823, 828 (l0th Cir. 1986). We review the
IBLA's factual findings deferentially, upholding the
findings as long as they are supported by substantial
evidence in the record as a whole. See Arkansas v.
Oklahoma, 503 U.S. 91, 108, 112 S. Ct. 1046, 1060,
117 L.Ed.2d 239 (1992); Monfort, Inc. v. NLRB,
965 F.2d 1538,1540 (l0th Cir.1992).
As we noted earlier, the parties agreed to a num-
ber of stipulations. While this court will honor stip-
ulations regarding factual issues, see, e.g., Vallejos
---------------------------------------- Page Break ----------------------------------------
5a
v. C.E. Glass Co., 583 F.2d 507, 510-11 (lOth Cir.
1978), "[i]t is well-settled that a court is not bound
by stipulations of the parties as to questions of law,"
Dimidowich v. Bell & Howell, 803 F.2d 1473, 1477
n. 1 (9th Cir. 1986).
III. THE EQUAL FOOTING DOCTRINE
Before addressing whether the patents granted
title in the islands to plaintiffs' predecessors in in-
terest, we must determine whether the islands passed
to Colorado when it became a state in 1876. If the
islands passed to Colorado when it entered the Union,
the United States government cannot now survey
the lands as its own.
The equal footing doctrine is grounded in the idea
that new states enter the Union with the same rights
as the original states. Pollard's Lessee v. Hagan,
44 U.S. (3 HOW.) 212, 230, 11 L.Ed. 565 (1845)
("The new states have the same rights, sovereignty,
and jurisdiction . . . as the original states."); see
also Utah Div. of State Lands v. United States, 482
U.S. 193, 195-97, 107 S. Ct. 2318, 2320-21, 96 L.Ed.2d
162 (1987). In Pollard's Lessee, the Supreme Court
held that " [t]he shores of navigable waters, and the
soils under them, were not granted by the Constitu-
tion to the United States, but were reserved to the
states respectively." Pollard's Lessee, 44 U.S. (3
How.) at 230. Because a new state enters the Union
on "equal footing" with the original states, it acquires
title to the lands under the navigable waters. within
its borders. Id.; see also Texas v. Louisiana, 410 U.S.
702, 713, 93 S. Ct. 1215, 1221, 35 L.Ed.2d 646 (1973),
Therefore, if these islands are in a navigable part
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6a
of the Colorado River and are part of the stream
bed, 2. they passed to the state in 1876.
The parties have stipulated, however, that these
islands lie in a non-navigable portion of the Colorado
River. The equal footing doctrine simply does not
cause land in non-navigable waters to pass from the
federal government to the state. Consequently, the
State of Colorado did not acquire the islands in 1876,
and the federal government held the islands as public
land following Colorado's entry into the Union.
IV. THE PATENTS
We next review whether plaintiffs hold title to the
land by virtue of the patents that the United States
government gave to plaintiffs predecessors in inter-
est. 3. Of course, if the federal government intended
___________________(footnotes)
2 The Supreme Court has refined the rule that lands under-
lying navigable streams belong to the states. Islands that are
fast dry land and not part of the bed or stream do not pass
to the states. Scott v. .Lattig, 227 U.S. 229, 244, 33 S.Ct. 242,
244, 57 L.Ed. 490 (1913); see also Texas, 410 U.S. at 713, 93
S.Ct, at 1221 (reaffirming the holding in Scott); Moss v.
Ramey, 239 U.S. 538, 546, 36 S. Ct. 183, 184, 60 L.Ed. 425
(1916) ("It was fast, dry land, and neither a part of the bed
of the river nor land under water, and therefore did not pass
to the state of Idaho on her admission into the Union."). The
IBLA found that the land masses were islands which were
fast dry land. Consequently, the land masses would not have
passed to the state in 1876 even if the river had been
navigable.
3 We emphasize that the questions of whether the land
passes to the state and whether it passes under the patent
are analytically distinct. In their briefs, the parties conflate
these issues, often using the law governing the passage of
land to the state to analyze rights under the patents. The
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7a
to retain the islands as public land, then the islands
remain the property of the United States. See Okla
homa v. Texas, 258. U.S. 574, 594-95, 42 S. Ct. 406,
414, 66 L.Ed. 771 (1922) ("If by . . . the terms of
its patent [the government] has shown that it in-
tended to restrict the conveyance . . . , that intention
will be controlling."). The government's intention
controls the disposition of land granted by govern-
ment patent; thus, the federal government is not
bound by its mistakes. Scott, 227 U.S. at 241-42,
___________________(footnotes)
Supreme Court, though, has clearly used different modes of
analysis for the two situations. See, e.g., Oklahoma v. Texas,
258 U.S. 574, 591-92, 42 S.Ct. 406, 413, 66 L.Ed. 771 (1922)
(although the river was not navigable and therefore title did
not pass to the state upon admission to the Union, the state
can claim parts of the bed "incidental to its ownership of
riparian lands on the northerly bank"); United States v.
Chandler-Dunbar Water Power Co., 209 U.S. 447, 451, 28
S. Ct. 579, 580, 52 L. Ed. 881 (1908) (analyzing "whether the
title remains in the state or passed to the defendant with the
land conveyed by the patent"); Hardin v. Shedd, 190 U.S.
508, 519-20, 23 S. Ct. 685, 685, 47 L.Ed. 1156 (1903) (explain-
ing that the state never owned the land even though the courts
look to state law to construe the patent).
Of course, this distinction does not mean that the state
cannot convey title to lands that it has gained through the
equal footing doctrine. See, e.g., United States v. Mission
Rock Co., 189 U.S. 391, 406, 23 S. Ct. 606, 609, 47 L. Ed. 865
(1903). For example, states own lands under navigable
streams under the equal footing doctrine. Some states auto-
matically grant title in that land to the riparian landowners.
See, e.g., Shedd, 190 U.S. at 519, 23 S. Ct. at 685 ("When land
under navigable water passes to the riparian proprietor, along
with the grant of the shore by the United States, it does not
pass by force of the grant alone, because the United States
does not own it, but it passes by force of the declaration of
the state which does own it that it is attached to the shore.").
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8a
33 S. Ct. at 243; Grand Rapids & I.R. Co. v. Butler,
159 U.S. 87, 94, 15 S. Ct. 991, 993, 40 L.Ed. 85
(1895) ("'[M]istakes, of course, do not bind the
government.'") (quoting Mitchell v. Smale, 140 U.S.
406, 413, 11 S. Ct. 819, 822, 35 L. Ed. 442 (1891)).
Nothing in the record clearly reveals the govern-
ment's intent with respect to patents affecting the
islands at issue. There is no indication that the gov-
ernment intended to part with the islands; however,
the evidence also does not support the contention that
the government's failure to survey the islands demon-
strated its desire to retain them. First, the patents
are silent as to whether the government continued
to view the islands as public lands or instead wished
to convey the property. Second, the parties have
stipulated that the reason that the government did
not originally survey the islands was that they were
of little value, suggesting that the government had
no affirmative intent to retain or dispose of the
islands. Finally, the geographic positioning of the
islands does not clearly show the government's intent.
The government patented all of the area around the
island. Because the river surrounding the islands is
non-navigable, the government had no access to the
islands. As the government points out, however, it
had other means to reach the islands, such as con-
demnation. We therefore find no government intent
expressed by the patents either to retain or to dis-
pose of the islands.
Given the ambiguity of the grants, the government
asks this court to subject the patents to "the general
rule of construction that any ambiguity in a grant
is to be resolved favorably to a sovereign grantor-
'nothing passes but what is conveyed in clear and
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9a
explicit language.'" Great N. Ry. Co. v. United
States, 315 U.S. 262, 272, 62 S. Ct. 529, 532, 86 L.Ed.
836 (1942 ) (quoting Caldwell v. United States, 250
U.S. 14, 20, 39 S. Ct. 397, 398, 63 L. Ed. 816 (1919));
see also Watt v. Western Nuclear, Inc., 462 U.S. 36,
59, 103 S. Ct. 2218, 2231, 76 L.Ed.2d 400 (1983).
But the Supreme Court has not used that interpretive
technique when examining the effect of a patent on
islands in adjacent waters. Instead, the Court has
stated that when the government's intention is am-
biguous, "it will be taken to have assented that its
conveyance should be construed . . . according to the
law of the state in which the land lies." Oklahoma,
258 U.S. at 595, 42 S. Ct. at 414.
Of course, "'[t]he question as to the extent-of this
federal grant, that is, as to the limit of the land
conveyed, . . . is necessarily a federal question.'"
Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 320, 94
S. Ct. 517, 523, 38 L.Ed.2d 526 (1973) (quoting Borax
Consol., Ltd. v. Los Angeles, 296 U.S. 10, 22, 56
S. Ct. 23, 29, 80 L. Ed. 9 (1935)), overruled in part
by Oregon ex rel. State Land Bd. v. Corvallis Sand
& Gravel Co., 429 U.S. 363, 378, 97 S. Ct. 582, 590,
50 L. Ed.2d 550 (1977). Nevertheless, in this select
area of cases, federal law directs a court to look to
state law to resolve the dispute. See Corvallis Sand
& Gravel Co., 429 U.S. at 378, 97 S. Ct. at 590 (stat-
ing that the "Court has consistently held that state
law governs issues relating to" riparian lands which
did not pass under the equal footing doctrine) ; Chan-
dler-Dunbar, 209 U.S. at 452-53, 28 S. Ct. at 581
(applying Michigan law); Whitaker v. McBride, 197
U.S. 510, 511-12, 25 S. Ct. 530, 531, 49 L. Ed. 857
(1905) ("It is the settled rule that the question of
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10a
the title of a riparian owner is one of local law.") ; 4.
Shedd, 190 U.S. at 519, 23 S. Ct. at 685; Grand
Rapids, 159 U.S. at 92-94, 15 S. Ct. at 992-93 (analyz-
ing Hardin v. Jordan, 140 U.S. 371, 11 S. Ct. 808,
35 L. Ed. 428 (1891), and applying Michigan law
to land grant) ; Jordan, 140 U.S. at 384, 11 S. Ct. at
812 ("In our judgment the grants of the government
for lands bounded on streams and other waters, with-
out any reservation or restriction of terms, are to be
construed as to their effect according to the law of
the state in which the lands lie." ). 5. Moreover, in cases
similar to the one at bar, two other circuits have in-
terpreted the same Supreme Court opinions as direct-
___________________(footnotes)
4 Although the government was not a party in Whitaker,
that case illustrates the. consistency with which state law is
applied in this area.
5 Compare Moss, 239 U.S. at 538, 36 S. Ct. at 183, where the
Supreme Court first found that the islands did not pass to the
State of Idaho and determined that "[t]he claim that the
island passed under the patents is . . . ill-founded" without
looking at state law. Id. at 546, 36 S.Ct. at 184.
Moss presents a different situation than our case. In Moss,
the islands were left unsurveyed by mistake. Id. "The field
notes and plat represented the survey as extending to the
river, but made no mention of the island." Id. at 545, 36 S.Ct.
at 184. In such a case, the Supreme Court found that the
government intended to retain the island. Id.; accord Wolff
v. United States, 967 F.2d 222, 225 (6th Cir.) (reading Moss
as representing "the familiar concept that the intent of the
United States, express or implied, governs the scope of the
land grants"), reh'g denied, 974 F.2d 702 (1992). This read-
ing of Moss is further reinforced by placing it in its chrono-
logical context. The Court's decision in Oklahoma, 258 U.S.
at 574, 42 S.Ct. at 406, coming six years after Moss, once
again applied state law to determine the rights of a riparian
land owner. Id. at 595, 42 S.Ct. at 414.
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11a
ing the court toward state law. See. Wolff v. United
States, 967 F.2d 222, 234 (6th Cir. ), reh'g denied,
974 F.2d 702 (1992); Bourgeois v. United States,
545 F.2d 727, 731 (Ct. Cl. 1976) ("[W]e hold that
if the intent of the grantor is ambiguous and the
Government grants shoreland along" non-navigable
waters, it also passes title to islands according to the
law of the state in which the property is located."). 6.
We therefore look to Colorado state law to ascribe
rights in the property at issue here.
"The general rule of law followed in Colorado is
that a deed conveying land bordered by a non-naviga-
ble stream includes the bed to the center." More v.
Johnson, 193 Colo. 489, 568 P.2d 437, 439 (1977);
see also United States v. Goodrich Farms Partner-
ship, 947 F.2d 906, 908 (l0th Cir. 1991) ; People v.
Emmert, 198 Colo. 137, 597 P.2d 1025, 1027 (1979).
This rule conforms to the common law rule for non-
navigable waters. See Jordan, 140 U.S. at 383-84,
11 S. Ct. at 812. We therefore conclude that Colorado
would follow the common law rule for islands in the
river, which holds that "all grants bounded upon a
river not navigable by the common law entitle the
grantee to all islands lying between the main-land
and the center thread of the current." Id. at 384,
11 S.Ct. at 812; see also Grand Rapids, 159 U.S. at
92-93, 15 S.Ct. at 992-93. The government does not
dispute that the islands fall between the mainland
and the center thread of the current and has there-
___________________(footnotes)
6 But see Ritter v. Morton, 513 F.2d 942, 946 (9th Cir.),
cert. denied, 423 U.S. 947, 96 S. Ct. 362, 46 L.Ed.2d 281
(1975); United States v. Severson, 447 F.2d 631, 634-35 (7th
Cir. 1971), cert. denied, 404 U.S. 1039, 92 S. Ct. 716, 30
L.Ed.2d 731 (1972).
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12a
fore waived the issue. Thus, applying Colorado law,
we hold that plaintiffs own the islands in question.
V. ATTORNEY'S FEES
Plaintiff's also ask for attorney's fees under the
Equal Access to Justice Act (EAJA), 28 U.S.C.
2412(d) (1) (A). That provision allows courts to
award fees to a "prevailing party" in an action
brought by or against the United States in any court
having jurisdiction of that action, unless the court
finds that the position of the United States was sub-
stantially justified or that special circumstances make
an award unjust." Id. A party must seek the fee
award "within thirty days of final judgment in the
action." Id. 2412(d) (1) (B).
In this context, a final judgment "means a judg-
ment that is final and not appealable." Id. 2412(d)
(2) (G). In other words, "[t]he 30 day EAJA clock
begins to run after the time to appeal . . . has expired."
Melkonyan v. Sullivan, 501 U.S. 89, 96, 111 S.Ct.
2157, 2162, 115 L. Ed.2d 78 (1991). We must there-
fore determine whether we can reach the merits of the
attorney's fees question even though either party could
appeal this decision (i.e., by applying for certiorari to
the Supreme Court).
In Melkonyan, the Supreme Court left open the
question of whether a party can ask for fees "at any
time up to 30 days after entry of judgment, and even
before judgment is entered, as long as he has achieved
prevailing party status." Id. at 103, 111 S. Ct. at
2165. The Court, however, has subsequently resolved
this issue. In Shalala v. Schaefer, - U.S. -,
113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), the district
court had never entered the judgment by filing a
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13a
separate document as required by Fed. R. Civ.P, 58, so
the time for filing an appeal of the district court's
decision technically had not run. The Court held that
the plaintiff was nevertheless entitled to file for attor-
ney's fees. Id. at - 113 S. Ct. at 2632. Schaefer
therefore makes clear that a plaintiff may ask for
attorney's fees even when the time for appeal has not
elapsed. Thus, we hold that plaintiffs' request before
this court is timely, and we will examine the merits
of their attorney's fees claim.
To repeat, plaintiffs are not entitled to attorney's
fees if the government's position is "substantially
justified." In this context, "substantially" means
"'justified in substance or in the main'-that is,
justified to a degree that could satisfy a reasonable
person." Pierce v. Underwood, 487 U.S. 552, 565,
108 S.Ct. 2541, 2554, 101 L. Ed.2d 490 (1988); see
also Gatson v. Bowen, 854 F.2d 379, 380 (10th Cir.
1988). While the ruling of other courts are not dis-
positive of whether the government's position is sub-
stantially justified, "a string of losses can be indica-
tive; and even more so a string of successes." Pierce,
487 U.S. at 569, 108 S.Ct. at 2552.
In this matter, the law of this circuit was unclear
before this case. In addition, other circuits had dis-
agreed over whether state law applied under these
circumstances. Compare Wolff, 967 F.2d at 222, and
Bourgeois, 545 F.2d at 727, with Ritter, 513 F.2d at
942, and Severson, 447 F.2d at 631. We therefore
hold that the position of the United States was sub-
stantially justified in this case, and plaintiffs are not
entitled to attorney's fees under the EAJA.
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14a
VI. CONCLUSION
Federal law instructs the court to apply state law
to ascribe title under the circumstances of this ease.
Because Colorado law would vest title in plaintiffs, we
hold that plaintiffs are the rightful owners of the
islands. The government's position in this case was
substantially justified, however, so plaintiffs are not
entitled to attorney's fees under the EAJA. The de-
cision of the district court is therefore AFFIRMED.
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15a
APPENDIX B
[LOGO]
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
COLORADO STATE OFFICE
Lakewood, Colorado 80215-7076
[Jul. 28, 1988]
Certified Mail
Kenneth Balcomb, Esq.
P.O. Drawer 790
Glenwood Springs, Colorado 81602
Dear Mr. Balcomb:
This letter responds to the protest you submitted for
the following: Exxon Corporation and Battlement
Mesa dated March 8, 1988; Edward H. Koch, Ed-
ward N. Juhan, Anthony Zarlengo, Flora Dere, Wal-
ter B. Lemon and Roberta Lemon, dated March 8,
1988; and Richard E. Looney, Daisy B. Looney and
Jan Ertl, dated March 19, 1988.
All of the above protests have common issues concern-
ing surveys executed by this office along the Colorado
River in the reach between DeBeque to New Castle,
Colorado. I have, therefore, joined them in this re-
sponse.
Your STATEMENT IN SUPPORT OF PROTEST
FOR EDWARD H. KOCH, EDWARD N. JUHAN
AND ANTHONY ZARLENGO, FLORA DERE,
WALTER B. LEMON AND ROBERTA A. LEMON
was the source document in preparing this response
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16a
to the above protestants, and fully explains the fol-
lowing decisions concerning all of the protests.
Decision
The Bureau of Land Management (BLM) hereby
dismisses the protests to acceptance of the surveys of
nine islands. The United States claims ownership
of the islands because they are islands not previously
surveyed which were in existence at the time of the
original survey of the surrounding lands. At the time
of the original survey, it was the Government's policy
to avoid the expense of surveying islands, as it was
not cost effective. That policy also contemplated that
when surveying such islands becomes cost effective,
the Government will do so. We note also that BLM
surveyors examined other islands at the same time
and decided not to claim those islands because of in-
sufficient evidence to support a finding of their exist-
ence at the time of the original survey.
The following are more detailed responses to the
protestants' allegations.
1. I hereby deny your clients' protests of the filing
of the plats of survey in Townships 6 and 7 South,
Range 95 West and Township 8 South, Range 96
West, Sixth Principal Meridian, Colorado, all ap-
proved on September 21, 1987.
2. I hereby deny your clients' protests of the Investi-
gative Report on the Omitted Islands in Township 6
South, Range 92 West, Township 7 South, Range 96
West, Township 8 South, Range 96 West, Sixth Prin-
cipal Meridian, Colorado, dated April 10, 1987.
3. 1 hereby affirm your protest of the Report on
Navigability of Colorado River in the reach of De-
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17a
Beque to New Castle, Garfield County, Colorado, un-
dated, but transmitted to the Colorado State Director
by memorandum dated November 20, 1984, to the
extent that the position of the Bureau of Land Man-
agement is that this stretch of the Colorado River is
nonnavigable.
I call your attention to the provisions relating to an
appeal from this response, as they are set out in Sub-
part E of the Department's regulations at 43 CFR
4.400 et seq. (October 1, 1984), including particu-
larly 43 CFR 4.410 and 4.411. If an appeal is taken
or claimed, the Notice of Appeal must be filed with
this office so that the case file can be transmitted to
the Interior Board of Land Appeals, U.S. Department
of the Interior. To avoid summary dismissal on the
appeal, there must be strict compliance with the regu-
lations, and the Appellant will have the burden of
proving that error was committed in the Bureau sur-
vey. We also call your attention to 43 CFR 4.413,
which requires the Appellant to serve a copy of the
Notice of Appeal and of any statement of reasons,
written arguments, or briefs on the Regional Solici-
tor, Rocky Mountain Region, U.S. Department of the
Interior, P.O. Box 25007, Denver Federal Center,
Denver, Colorado 80225.
If any appeal is taken, you are allowed 30 days from
the date of receipt of this letter to file your Notice of
Appeal with this office.
Sincerely,
/s/ Neil F. Morck
NEIL F. MORCK
State Director
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18a
APPENDIX C
[LOGO]
UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF HEARINGS AND APPEALS
HEARINGS DIVISION
6432 Federal Building
Salt Lake City, Utah 84138-1194
(Phone: 801-524-5344)
December 21, 1989
IBLA 89-1
(CO-942, Group 719)
Protest on Survey
EXXON CORPORATION and BATTLEMENT MESA INC.,
EDWARD H. KOCH, EDWARD N. JUHAN, and AN-
THONY ZARLENGO, WALTER B. LEMON, and ROB-
ERTA LEMON, RICHARD E. LOONEY, DAISEY B.
LOONEY and JAN ERTL, and FLORA DERE, APPEL-
LANTS
v.
BUREAU OF LAND MANAGEMENT, RESPONDENT
DECISION
Child, Judge.
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19a
Statement of the Case
Appeal from decision of Colorado State Director,
Bureau of Land Management (BLM) dated July 28,
1988, denying protests concerning a BLM tract seg-
regation survey in T. 6 S., R. 95 W.; T. 7 S., R. 95
W.; and T. 8 S., R. 96 W., Sixth Principal Meridian,
Colorado. Appellants claim ownership and allege
BLM erred in claiming by resurvey "islands" in the
Colorado River. The State Director concluded that
the "islands" were in existence at the time of the
original surveys, but were "omitted" from those
surveys.
Appellants requested a hearing which was granted by
Order of the Interior Board of Land Appeals en-
tered March 14, 1989.
The Issues:
The issues to be here determined are:
A. Were the parcels in question "islands" at the
time of the original survey?
B. Were the parcels in question "omitted" from the
original survey?
C. Are the parcels in question property of the
United States?
The matter came on regularly for hearing at Glen-
wood Springs, Colorado, on the 13th, 14th, 15th and
16th days of June 1989. At the outset of the hear-
ing, the parties placed into the record a 16 page
stipulation (Stipulation ) duly executed by the attor-
neys for the parties, which stipulation was not
marked as an exhibit, but rather was incorporated
into the file.
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20a
The parties were requested to submit post hearing
proposed findings of fact and conclusions of law and
briefs in support of their respective positions and
have done so, To the extent proposed findings or con-
clusions are consistent with those entered herein,
they are accepted; to the extent they are not so con-
sistent, they are rejected.
Statement of the Facts
This case involves an approximately 15 mile stretch
of the Colorado River roughly midway between Glen-
wood Springs and Grand Junction, Colorado, herein-
after referred to as "the reach." This reach flows
between Rifle and DeBeque, Colorado. The parties
have stipulated that the Colorado River at the reach
in question is a non-navigable stream. (Stipulation,
III, D, 6)
Over a period of approximately three centuries com-
mencing about 500 years ago the reach was influ-
enced by an occurrence high in the adjacent moun-
tains commonly referred to as the little ice age. Dur-
ing that period there was considerable glacial erosion
caused by expansion of the Alpine Glaciers in the
Rocky Mountain. This glacial erosion yielded large
amounts of sediment, the onslaught of which tended
to widen the Colorado River channel. This action
provided a relatively high percentage of sediment
transported as bed material which was fairly coarse
as opposed to sediment suspended in the flowing
waters which is generally made up of medium sand
to silt and clay. The net effect of this little ice age
was to cause a channel in the vicinity of the reach
that was braided in its morphology.
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21a
Since the cessation of the little ice age in the late
1700's, the onslaught of coarse sediment has been no
longer available for transport and the Colorado River
at that point became a stream much more typical of
what one would find in the midwest or elsewhere.
The tendency of the River in modern times is to try
to narrow some of the braiding which was present,
two or three hundred years ago.
The bottomland of a stream valley, referred to as the
floodplain, is formed of alluvium, being the sediment
that has been deposited over time by the stream and
the surface of the floodplain is generally conformable
to the level of the two-year flood.
The land masses within the reach have matured
within the River to a degree that they have a mor-
phology very similar to the floodplain and an eleva-
tion identical thereto. The same processes that
formed the floodplain itself formed these land masses
within the reach, but these land masses have been
separated from the floodplain by an anabranch of the
stream, i.e., a secondary channel of a multiple thread
stream.
In the vicinity of the reach, the Colorado River can
be said to be in a state of semi-disequilibrium, still
showing the after effects of the glaciation. The tend-
ency over time is for the anabranches of the channel
to be resolved and the land masses within the river
to become attached to the floodplain to the end that
the river will become a single thread stream. Thus,
this reach of the Colorado River is in the process of
healing itself from an unstable stream to a stable,
single-thread fluvial system.
Typically these land masses are not the result of water
cutting a channel, but rather they are the result of
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22a
sediment being caught by an obstruction of some sort
on the river bed followed by depositions of material
on the lee side of that obstruction which deposition
grows over time until, through a process of accretion,
the land mass achieves a height or elevation compara-
ble to the floodplain adjacent to the river.
The process of the anabranches of the river resolving
themselves and the land masses becoming affixed to the
floodplain at the sides of the river would tend to be
accelerated by the dynamics of water diversion or stor-
age upstream, or other reductions of flood peaks with
the resulting reduction of annual scarring in the sec-
ondary channel. Accumulated sediment being allowed
to remain, with vegetation resulting, would increase
the pace of the healing process. Such accelerating
factors have occurred in the instant case. (Tr. 119,
122, 147, 156-159, 360-373)
_________
In the latter fifth of the nineteenth century, the Fed-
eral Government undertook to survey the lands across
which this reach of the Colorado River flowed. These
original surveys were conducted pursuant to contracts
which required the individual surveyors to post a bond
for at least double the estimated amount to have been
due upon the completion of the contract. Upon the
individual surveyor's certification of completion of his
survey, his field notes were examined and approved
by the United States Surveyor General and a plat
thereof was prepared by the Department of the In-
terior and certified by the United States Surveyor
General to be strictly conformable to the field notes
of the individual surveys. None of these surveys were
approved until they were found to have been in exact
---------------------------------------- Page Break ----------------------------------------
23a
accordance with the instructions governing them.
(Stipulation, III, B, 1)
It is stipulated by the parties that these original sur-
veys were accepted as having been completed in exact
conformance with the applicable instructions and that
they were neither fraudulent nor erroneous. ( Stipu-
lation, III, D, 5 and 7)
________________
The first survey touching upon this reach of the
Colorado River was performed by Deputy Surveyor
Williamson in October, November and December of
1883 and January of 1884. U.S. Deputy Surveyor
Henry E. Simon performed the next such survey in
March and April of 1885. Again in October and No-
vember of 1886 and October of 1887 the third such
original survey was performed by U.S. Deputy Sur-
veyor Benjamin F. Clark, None of these three sur-
veys involved the uplands now owned by appellants
herein or the land parcels subject of this proceeding.
In the Williamson survey only small portions of the
River were involved and even those portions were not
meandered. Surveyor Simon meandered only the right
bank of the River and made no mention of "islands"
in his field notes. Simon's survey was examined in
the field, reported as having been correctly surveyed
and accepted as having been conducted in exact ac-
cordance with the applicable instructions by the Com-
missioner of the General Land Office on March 2,
1887. The original plat of this township surveyed by
Simon, nonetheless, reflects the existence of four
"islands." Subsequent patents to these lands were
issued by the United States without reference to the
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24a
meandered bank of the River, any "islands" or the
River itself. Finally, Deputy Surveyor Clark in fol-
lowing his instructions meandered both banks of the
Colorado River as it crossed the Townships he was
charged with surveying and being instructed as he
was to meander all islands in the River, he meandered
five islands and noted the existence of approximately
eleven topographical objects lying between the me-
ander lines of the River. (Stipulation, III, B, 2, 3
and 4).
The fourth and fifth original surveys touching upon
this reach of the Colorado River were performed by
U.S. Deputy Surveyors Peter Churchfield during the
period of October and November 1889 and George W.
House in June of 1891. These last two surveys in-
volved the uplands now owned by the appellants and
among others, the lands parcels subject of this pro-
ceeding. The Church field surveys were governed by
the 1855 Manual of Surveying Instructions, The In-
struction of June 1, 1864, The Instructions of May
3, 1881, The Annual Instructions of July 25, 1884,
and Special Instructions dated July 22, 1889. The
House survey was governed by the 1890 Manual of
Survey Instruction and Special Instructions dated
April 20, 1891. (Stipulation, III, B, 5 and 6)
The Churchfield survey resulted in two islands being
meandered (neither is among the parcels here in
dispute) and notation of approximately fifteen topo-
graphical objects lying between the meander lines of
the river. Although Surveyor House noted four land
masses between the meander lines of the River he
meandered no islands.
---------------------------------------- Page Break ----------------------------------------
25a
Fairly summarized it can be said that the instructions
governing the original surveys required all islands
between the surveyor established meander lines of the
Colorado River to be meandered. Those instructions
also required the deputy surveyor to take field notes
in which he was to exercise "the utmost care * * *
to pass no object of topography * * * without giving
a particular description." The surveyor was in-
structed to "make a faithful, distinct and minute
record of everything done and observed" and to pre-
sent as far as possible a full and complete topographi-
cal description of the country surveyed and to render
sketches thereof in relation to the survey lines he
was establishing. (Stipulation, III, C) That the sur-
veyors did note these topographical factors is demon-
strated by the fact that many land masses or parcels
in the river showed upon the original plats although
they were not meandered as islands in the surveys.
With respect to the parcels here contested, the field
notes of the U.S. Deputy Surveyors indicate the fol-
lowing:
Parcel 9-a "bar or low islands." (Exhibit G-3)
Parcel 10-a "long low island, overflowing and
unfit for cultivation," (Exhibit G-3)
Parcel 14-a "low overflowing island." (Exhibit
G-28)
Parcel 20-A "large island." (The original plat
made from the survey and field notes of Deputy
Surveyor House suggests this parcel may have
been three parcels in 1891) (Exhibit G-29)
Parcel 20A a "small island." (Exhibit G-29)
Parcel 21-an "island." (Exhibit G-29)
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26a
Parcel 22-a "gravel bar." (Exhibit G-29)
(Stipulation, III, D)
__________________
Due to mineral development in the area and respond-
ent's classification of the area as an "area of critical
environmental concern," the BLM began an investiga-
tion in 1982 to determine the ownership of many "is-
lands" in the Colorado River between Grand Junction
and Glenwood Springs. (Respondent's Posthearing
Brief, pp. 1, 2)
In the investigation, the respondent investigated 22
parcels which had not been meandered in the original
survey and of those 22 parcels, claimed ownership to
9 parcels, 6 of which are subject of this action. ( Tr.
10) Ownership of these six parcels is claimed by re-
spondent under the following theory:
* * * These islands were omitted from the origi-
nal surveys in 1889 and 1890 because they could
not be economically surveyed. Because unsur-
veyed, omitted land may not be legally trans-
ferred from Federal ownership, these six islands
remain public lands owned by the United States.
(Respondent's Posthearing Brief, p. 1)
BLM issued its decision accepting its survey per-
formed between 1982 and 1987 which in effect asserts
Federal ownership of the nine parcels, including the
six parcels subject of this action. Appellants, as own-
ers of the riparian uplands adjacent to said six
parcels, protested the said decision issued by the Colo-
rado State Director of BLM and appealed from a
denial of that protest.
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27a
At the request of appellants, the matter was referred
by the Interior Board of Land Appeals to the Hear-
ings Division for a hearing and this decision which
shall be final for the Department of the Interior absent
a timely appeal to the Interior Board of Land Appeals.
Discussion
The parties have agreed to the following legal princi-
ples which shall be controlling for purposes of this
case:
1. A Grantee of land bordering a non-navigable me-
andered river takes title to all submerged lands
between the mainland and the thread of the river,
unless expressly reserved by the United States.
2. In the absence of an express reservation of sub-
merged unsurveyed lands, such a reservation can-
not be implied.
3. The original Government Land Office plats and
field notes of the areas surveyed, having been in-
corporated by reference in the original patents,
are a part of the description of the lands granted.
4. A meander line is a traverse of the margin of a
permanent natural body of water which follows
the contour of such a body at mean high water.
Meander lines are not run as boundaries, but are
used to define the sinuosities of the river and to
ascertain the quantity of land remaining after
segregation of the water area.
5. An "Island" is a permanent land mass rising from
the bed of a meanderable body of water above the
mean high water mark, separated from the main-
land by a perpetual channel.
(Stipulation, VI, p. 14)
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28a
A.
Were the parcels in question "islands" at the time of
the original survey?
Messrs. Churchfield and House made note of the par-
cels in question, each of which appeared on the origi-
nal plats prepared from their survey notes. Although
they were charged and instructed to "meander" (in
effect, "survey" ) all islands in the Colorado River as
it crossed the lands they were surveying, they did not
meander these parcels. Cursory inspection of the
valley bottom through which this reach of the Colorado
River runs would impress any rational person or sur-
veyor that this river was in a state of constant change
and the parcels within the River unstable and subject
to being altered or eliminated at the whim of the river
during any seasonal runoff. An examination of the
many exhibits prepared and offered by the respondent
cannot but impress even the casual observer that these
parcels have gone through dramatic shifts, alterations
and changes since the original surveys in 1889 and
1891. Single parcels have divided and multiple par-
cels have united. None of the parcels has shown itself
to have the capacity for constancy since it was noted
by the surveyors and placed on the original plat. (See
particularly Exhibits G-3, G-5, G-28, G-29)
Well could the original surveyors have recognized the
futility of meandering such shifting protrusions of
the river bed. Well could the issuers of patents to the
uplands in the vicinity of these parcels have acknowl-
edged that these unstable parcels properly should pass
with the stream bed of this non-navigable river. Un-
der no fair interpretation of the evidence could these
parcels be said to be fast, dry lands at the time of the
original survey.
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29a
The definition of "island" accepted by the parties to
this action which we must apply requires a "perma-
nent land mass," separated from the mainland by a
"perpetual channel." The parcels here in question
have shown themselves to lack permanency, Geological
evidence presented by the respondent testified to the
fact that this reach of the Colorado River is in a state
of "Semi-disequilibrium tending to straighten itself
and remove land parcels from the course of its cur-
rent. Although the court in Ritter v. Morton, 513
F.2d 942, 950 (9th Cir. 1975) viewed morphological
evidence to be irrelevant, that case is distinguished
from the present case, since it would appear that the
court in Ritter was able to apply an elementary school
definition of "island" and did not concern itself with
the permanent nature of the land mass in question,
Likewise with respect to the channel which separates
the land mass from the mainland, ours, by reason of
the definition agreed to by the parties, is a more
specific inquiry that that generally confronting the
courts in the cases which have been cited. We here
must ask ourselves, was the channel perpetual ? An
elementary school definition of "island" is not gen-
erally so restricted. Webster's II New Riverside Uni-
versity Dictionary, copyright 1984, currently fur-
nished its employees by the United State Government,
defines Perpetual as deriving from the Latin "per-
petuus, continuous perpes, uninterrupted 1. Lasting
for eternity: never ending * * *"
That a channel must be of water when speaking of an
island in a river, lake or ocean cannot be gainsaid.
Simply put, no channel would separate these parcels
from the mainland (floodplain or upland) when the
parcel was inundated by water during times when
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30a
the river was at flood state. Neither would the parcels
be separated by a channel from the mainland when
the river was at low stage which would occur sea-
sonally or in times of drought. If, as respondent
claims, a channel is a channel even when dry, it is
nonetheless then a dry channel and fails to separate
the parcel from the upland.
The term channel is used in many ways. The drip
molding on an automobile is a channel as is the rain
gutter on a house. Respondent's reliance on cases dis-
cussing intermittent or seasonal water courses as
channels whether flowing or dry does not shed light
upon when is an island! In order for a channel to
separate a land mass in a river from the uplands or
mainland, it must contain water throughout its length.
In order to meet the definition of island agreed to by
the parties, such a channel must do so perpetually.
The parcels here in question were not permanent land
masses nor were they separated from the mainland by
perpetual channels. Under the definition to which the
parties are bound, the parcels subject of this action
were not islands at the time of the original surveys
in 1889 and 1890 nor were they at the time of the
hearing.
B.
Were the parcels in question "omitted" from the origi-
nal survey?
The proposition of law upon which respondent relies
is stated in the lead note in Oliver Wheeler v. Bureau
of Land Management, 108 IBLA 296 (1989) :
An island, whether located in navigable or non-
navigable waters, that is omitted from a survey
remains public domain and may be surveyed and
disposed of by the United States.
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31a
The two essential elements to be found to effect re-
tained ownership by the United States under this
proposition are (a) that a present island existed in its
present form as "fast dry land" at the time of the
original survey, and (b) error in omitting it from
the original survey. See Scott v. Lattig, 227 U.S. 229
(1913) and Moss v. Ramey, 239 U.S. 538 (1916). In
Scott and Moss the Court found the parcels in ques-
tion to have existed as islands at the time of the
original survey as fast dry lands in the same form
as that existing at the time of the hearing. Since the
surveyors were charged with surveying islands and
recording same in their field notes and failed to so
survey or to make any reference to same in their
field notes and the islands failed to appear on the
original plats, the Court held the omission of these
islands from the survey to have been in error. Par-
ticularly was this so in Ritter v. Morton, supra, where
the Court noted that since the original surveyor in-
cluded in his survey a much smaller island in an ad-
joining section, but failed to make any note whatso-
ever of the island at issue, "In all probability, he
intended to return and survey the islands at a later
date." The Court held under these circumstances that
it was error to have omitted the island in question
from the survey, wherefore title thereto remained in
the United States. Supra at pages 950 and 951.
Ritter, Scott and Moss, supra, contain references to
circumstances where omission of land parcels within
rivers from original survey does not serve to cause
title thereto to remain in the United States. Such
circumstances may include decision that the island
was too small or of too little value. United States v.
Lane, 43 S. Ct. 236 is cited by the Circuit Court in
Ritter, supra, at page 950, for its enumeration of
---------------------------------------- Page Break ----------------------------------------
32a
factors which might excuse the survey of islands, the
omission of which from the survey would not consti-
tute error and title to which would presumably pass
with riparian uplands. Such factors include the omit-
ted lands locality, remoteness and value and the exist-
ence of any difficulties out of proportion to any
possible gains in surveying.
In the case at bar the original surveyors were in-
structed to survey or meander all islands in the Colo-
rado River and to carefully note all topographical
features. Some islands within the river were me-
andered. The land parcels in question were not sur-
veyed or meandered. However, they were noted in the
field notes and appeared on the original plats. The
parties have stipulated that the original surveys here
in question were accepted as having been completed in
exact conformance with the instructions which gov-
erned them and that the original surveys were neither
fraudulent nor erroneous.
It thus appears that Surveyors Churchfield and
House committed no error in omitting these parcels
from their original surveys. It is apparent that they
concluded that the parcels in question lacked the per-
manency essential to qualify as islands. It is fur-
ther apparent that they recognized the futility of
meandering these parcels, since a meander performed
on Tuesday may well be unrecognizable on Wednes-
day, given the instability of the Colorado River at
this juncture.
The parcels, subject of this action were not islands,
omitted from the original survey; rather, they were
included in the survey, but excluded as islands there-
from.
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33a
C.
Are the parcels in question property of the United
States ?
The cases cited by the respondent have been carefully
reviewed and are generally distinguished from the
case at bar. The definition of "island" stipulated to
by the parties governs this case. Here the original
surveyors were charged with surveying all islands
in the Colorado River along the reach in question.
Here the parcels in question were noted in the field
notes of the surveyors and appeared on the original
plats made from those field notes. Other parcels
along the reach were surveyed as islands. Finally,
the parties here acknowledge the original surveys
were accepted as having been completed in exact con-
formance with the instructions which governed them
and were neither fraudulent nor erroneous.
Under the circumstances of this case, the original
surveyors were justified in viewing the parcels in
question not to be islands, but rather part of the
shifting bed of the Colorado River. As such, they
passed with the uplands on issuance of patent thereto.
See Whitaker v. McBride, 197 U.S. 510 (1905).
Now having observed the demeanor of the witnesses
and having weighed the credibility thereof, there are
here entered the following:
Findings of Fact
1. Factual findings stated elsewhere in this decision
are here incorporated by reference as though again
specifically restated at this point.
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34a
2. Appellants Walter B. Lemon and Roberta A.
Lemon hold title to lands along the south bank of
the Colorado River in Section 25, T. 6 S., R. 95 W.,
of the Sixth Principal Meridian through mesne con-
veyance from the original patents granted by the
United States, which describe the patented acreage
by reference to the official plats of the original sur-
vey of the involved lands. These lands are adjacent
to the lands claims by the Government as Parcel 9
in that section. (Stipulation, p. 3; Exhibit G-3)
3. Appellant Flora Dere holds title to lands along
the north bank of the Colorado River in Section 35,
T. 6 S., R. 95 W., of the Sixth Principal Meridian
through mesne conveyance from the original patents
granted by the United States, which describe the pat-
ented acreage by reference to the official plats of the
original survey of the involved lands. These lands
are adjacent to the lands claimed by the Government
as Parcel 10 in that section. (Stipulation, p. 3; Ex-
hibit G-3)
4. Appellant Edward H. Koch holds title to lands
along the north bank of the Colorado River in Section
7, T. 7 S., R. 95 W., of the Sixth Principal Meridian
through mesne conveyance from the original patents
granted by the United States, which describe the
patented acreage by reference to the official plats of
the original survey of the involved lands. These
lands are adjacent to the eastern portion of the lands
claimed by the Government as Parcel 14 in that sec-
tion. (Stipulation, p. 3; Exhibit G-28)
5. Appellants Richard E. Looney and Daisey B.
Looney hold title to, and appellant Jan Ertl, by vir-
tue of a contract of purchase and sale, asserts an
interest in, lands along the north bank of the Colo-
rado River in Section 7, T. 7 S., R. 95 W., of the Sixth
---------------------------------------- Page Break ----------------------------------------
35a
Principal Meridian through mesne conveyance from
the original patents granted by the United States,
which describe the patented acreage by reference to
the official plats of the original survey of the involved
lands. These lands are adjacent to the western por-
tion of the lands claimed by the Government as Parcel
14 in that section. (Stipulation, p. 3; Exhibit G-28)
6. Appellants Edward N. Juhan and Anthony Zar-
lengo hold title to lands along the south bank of the
Colorado River in Section 7, T. 8 S., R. 96 W., of the
Sixth Principal Meridian through mesne conveyance
from the original patents granted by the United
States, which describe the patented acreage by ref-
erence to the official plats of the original survey of
the involved lands. These lands are adjacent to the
lands claimed by the Government as the northeast
portion of Parcel 20 and Parcels 20-A and 22 in that
section. (Stipulation, p. 4; Exhibit G-29)
7. Appellant Exxon Corporation (Exxon) holds title
to lands along the banks of the Colorado River in
Section 7, T. 8 S., R. 96 W., Sixth Principal Merid-
ian, through mesne conveyance from the original
patents granted by the United States, which describe
the patented acreage by reference to the official plats
of the original survey of the involved lands. These
lands are adjacent to the lands claimed by- the Gov-
ernment as the southwestern portion of Parcel 20
and Parcel 21 in that section. (Stipulation, p. 4; .Ex-
hibit G-29)
8. Each of the parcels, subject of this action, had
surface areas above the ordinary high water mark
at the time of the original surveys and could there-
for have been meandered.
9. None of the parcels, subject of this action, was
an island at the time of the original survey as that
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36a
term is defined by stipulation of the parties. (Stipu-
lation, VI, par. 6, p. 14)
10. The ordinary high water mark, mean high
water line and vegetation line approximate the ele-
vation along the river of the mean annual flow,
which approximates the meander line. ( Tr. 394, 417,
502,514-515, 527-531)
Conclusions of Law
1. The Hearings Division of the Department of the
Interior has jurisdiction of the parties and of the
subject matter of this proceeding.
2. Conclusions of law reached and set forth else-
where in this decision are here incorporated by ref-
erence as though again specifically restated at this
point.
3. The patents to the lands adjoining the Colorado
River in the involved reaches contained no reserva-
tions of the disputed lands to the United States.
4. The patents to the lands adjoining the Colorado
River in the involved reaches incorporate by reference
the Government Land Office plats and field notes of
the areas surveyed.
5. No evidence supports respondent's contention that
"* * * These islands were omitted from the original
surveys in 1889 and 1890 because they could not be
economically surveyed." Rather the contracts for
survey issued by the Government required the sur-
vey of all islands in the involved reach of the Colo-
rado River.
6. The parcels, subject to this action, were included
in the original surveys and not omitted therefrom.
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37a
They were correctly determined at the time of said
surveys not to qualify as islands.
7. For purposes of this case, by reason of the agreed
definition of "island" set forth in the stipulation en-
tered into the record, a land mass rising from the bed
of a meanderable body of water above the mean high
water mark is not an island unless: (a) it is a per-
manent land mass, (b) separated from the mainland
by a perpetual channel.
8. To the extent the 1982-1987 surveys represent the
parcels, subject of this action, to be islands, title to
which was presumably retained by the United States,
they are legally and factually incorrect and the re-
spondent's decision to so accept said surveys should
be reversed.
9. Title to the thread of the Colorado River passed
with patent to the uplands adjacent to the parcels,
subject of this action.
Order
The parcels subject of this action, to-wit: numbers 9,
10, 14, 20, 20-A, 21 and 22 are not property of the
United States and the respondent has no bona fide
claim thereto. Respondent's decision to the contrary
is reversed.
Dated: December 20, 1989
/s/ Ramon M. Child
RAMON M. CHILD
Administrative Law Judge
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38a
Appeal Information
Any party adversely affected by this decision has the
right of appeal to the Interior Board of Land Ap-
peals. The appeal must comply strictly with the reg-
ulations in 43 CFR Part 4 (see enclosed information
pertaining to appeals procedures).
Distribution
By Certified Mail:
Kenneth Balcomb, Esq.
Robert Noone, Esq.
Delaney & Balcomb, P.C.
818 Colorado Avenue,
P.O. Drawer 790
Glenwood Springs, Colorado 81602
Lyle K. Rising, Esq.
Robert D. Comer, Esq.
Office of the Regional Solicitor
U.S. Department of the Interior
P.O. Box 25007, Denver Federal Center
Denver, Colorado 80225
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39a
APPENDIX D
[LOGO]
UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF HEARINGS AND APPEALS
INTERIOR BOARD OF LAND APPEALS
4015 Wilson Boulevard
Arlington, Virginia 22203
EXXON CORP., ET AL.
v.
BUREAU OF LAND MANAGEMENT
IBLA 90-199
Decided February 21, 1991
Appeal from a decision of Administrative Law
Judge Ramon M. Child reversing a decision of the
Colorado State Director, Bureau of Land Manage-
ment, which had dismissed protests to the acceptance
of surveys of certain islands in the Colorado River,
and concluding that such lands were not islands
omitted from the original surveys of the area. CO-
942, Group 719.
Reversed.
OPINION BY
ADMINISTRATIVE JUDGE HARRIS
The Bureau of Land Management (BLM) appeals
from a December 21, 1989, decision of Administra-
tive Law Judge Ramon M. Child reversing a July 28,
1988, decision of the Colorado State Director, BLM,
which had dismissed protests to the acceptance of
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40a
surveys of certain islands. 1. located in T. 6 S., R. 95
W., T. 7 S., R. 95 W., and T. 8 S., R. 96 W., sixth
principal meridian, Colorado, in the reach of the
Colorado River between Rifle and DeBeque, Colorado.
The Judge concluded that the surveyed land masses
(which he designated "parcels") were not islands
omitted from the original surveys of the area and,
therefore, were not the property of the United States.
I. Procedural and Factual Background
The original surveys of the particular areas in
question were performed in 1889 and 1891. Deputy
Surveyor Peter Churchfield surveyed T. 6 S., R. 95
W., and T. 7 S., R. 95 W., in October and November
1889, and that survey was accepted on March 12,
1890. Deputy Surveyor George W. House conducted
the survey of T. 8 S., R. 96 W., in June 1891, and
that survey was accepted on February 23, 1892. Al-
though neither surveyor meandered any of the land
masses at issue in this appeal, they identified each
land mass in their field notes and each land mass
___________________(footnotes)
1 In the protests to BLM, protestants challenged the surveys
as they related to nine islands; however, certain protestants
did not appeal BLM's dismissal of their protests. In addition,
in its opening appeal brief, BLM indicates that Parcel 20 A
is not being claimed by the United States (BLM Brief at 24
n.7; Tr. 494), as it did at page 18 of its Proposed Conclusions
of Law filed with Judge Child. Nevertheless, in his decision,
Judge Child addressed Parcel 20 A, ruling that it was not an
island. Since it was not asserting title to that parcel, BLM
did not challenge that ruling. For purposes of appeal, only
six land masses, identified in the record as Islands or Parcels
9, 10, 14, 20, 21, and 22, are at issue. They contain 23.68
acres, 66.63 acres, 43.11 acres, 19.51 acres, 7.29 acres, and
7.97 acres, respectively.
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41a
appeared on the plats prepared from the field notes. 2.
The United States patented the surveyed land ad-
jacent to the Colorado River, incorporating by ref-
erence the plats and field notes of the areas surveyed.
In 1982, BLM commenced an investigation to de-
termine ownership of 22 land masses in the Colorado
River between Glenwood Springs and Grand Junc-
tion, Colorado, including the parcels at issue here. 3.
After evaluating data from the original survey rec-
ords, railroad survey plats prepared in 1886 and
1919, aerial photography from 1937, 1945 or 1948,
1954, 1978, and 1984, dendrochronology analyses of
samples taken from trees on the various land masses,
and hydrology reports, BLM determined that 9 of the
22 land masses which had not been meandered in the
___________________(footnotes)
2 Churchfield's field notes described the land masses, identi-
fied in this ease as Parcel 9, located in sec. 25, Parcel 10,
located in sec. 35, T. 6 S., R. 95 W., and Parcel 14, located in
sec. 7, T. 7 S., R. 95 W., as a "bar or low island," a "long low
island, overflowing and unfit for cultivation," and a "low
Overflowing island * * * bar or low island" respectively;
while the House field notes characterized the land masses,
identified in this case as Parcels 20, 21, and 22, located in
sec. 7, T. 8 S., R. 96 W., as a "large island" (the original
plat depicts this parcel as three islands), an "island," and a
"gravel bar," respectively. See Judge Child's Decision at 6,
and BLM Brief, Attachment A.
3 The investigation was precipitated by inquiries from local
landowners and oil companies concerning the ownership of
the land masses. Apparently, several of the land masses con-
tain valuable sand and gravel, and oil companies have dis-
covered natural gas and coalbed methane along this reach of
the Colorado River (BLM Brief at 2; Tr. 42-43). This area
has also been classified as an Area of Critical Environmental
Concern due to the existence of wildlife habitat and the area's
recreational potential (BLM Brief at 2; Tr. 43).
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42a
original surveys were islands which existed at the
time of the original surveys and continued to exist
(see Exh. G-27). Based on this investigation, BLM
accepted the surveys of the nine omitted islands per-
formed between 1982 and 1987 and announced in the
Federal Register that it would officially file the plats
in the Colorado State Office on a particular date.
Prior to that date, as extended by ELM, various
individuals and corporations protested that proposed
action, alleging ownership of the land masses on the
ground that the parcels were part of the riverbed
which had passed to the original patentees of the
riparian lots based on the original surveys ( see, e.g.,
Exh. A, attached to Exh. A-23).
By decision dated July 28, 1988, the Colorado State
Director, BLM, dismissed the protests, stating that
the United States claimed ownership of the land
masses because they were islands omitted from the
original surveys which were in existence at the time
of the original surveys of the surrounding lands
(Exh. G-14).
Certain protestants (claimants) appealed that dis-
missal to this Board and requested a hearing. 4. The
___________________(footnotes)
4 The claimants and the adjacent parcel(s) which they seek
are: Walter B. and Roberta A. Lemon-Parcel 9; Flora Dere
-Parcel 10; Edward H. Koch-eastern portion of Parcel 14;
Richard E. and Daisey B. Looney and Jan Ertl-western por-
tion of Parcel 14; Edward N. Juhan and Anthony Zarlengo-
northeastern portion of Parcel 20 and Parcel 22; Exxon Corp.
-southwestern portion of Parcel 20 and Parcel 21. See Deci-
sion at 12-13; Stipulation (Stip.) III. A. (1)-(6). Battlement
Mesa, Inc. (BMI), filed a protest in this case asserting title
to the center line of the bed of the river adjacent to riparian
uplands in T. 7 S., R. 95 W., and T. 7 S., R. 96 W. See Exh.
B, attached to Exh. A-23, at 4. It was also an appellant before
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43a
Board docketed that appeal as IBLA 89-1. By order
dated March 14, 1989, the Board granted claimants'
request and referred the case to the Hearings Divi-
sion for assignment of an Administrative Law Judge
and issuance of an initial decision, which, absent an
appeal to the Board, would be final for the Depart-
ment. 5.
The hearing in this case was held on June 13-16,
1989, and included a field trip to view several of the
disputed land masses. However, prior to the hearing,
on June 12, 1989, the parties executed a 16-page pre-
heating stipulation which was made part of the rec-
ord at the hearing. The stipulated facts included ex-
cerpts from the relevant surveying manuals and
instructions directing surveyors to meander islands
and to note topographical features (Stipulation
(Stip.) 111. C.). The parties agreed that "[t]he
surveys of the involved lands were accepted as having
been completed in exact conformance with the In-
structions" (Stip. III." D. 5), and that "[t]he orig-
inal surveys were neither fraudulent nor erroneous"
___________________(footnotes)
the Board in IBLA 89-1; however, it is unclear whether BMI
still remains a party here since, at the hearing, claimants'
counsel did not name BMI as one of the parties they repre-
sented. See Tr. 4-6.
5 Prior to issuance of our order, claimants had filed a re-
quest with the Secretary of the Interior that he remove the
case from the Board and assume jurisdiction thereof in ac-
cordance with 43 CFR 4.5. By letter dated Mar. 31, 1989, the
Director, Office of Hearings and Appeals, responded to that
request, informing claimants that the Secretary had declined
to take personal jurisdiction of the appeal, but that he had
ordered that the case be considered on an expedited basis.
Accordingly, the Board has undertaken expedited considera-
tion of this appeal. See Board order dated Oct. 11, 1990.
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44a
(Stip. III. D. 7). See also Stip. III. B. 1. Under the
terms of the stipulation, claimants were to prove that
the subject lands were below the ordinary high water
mark of the Colorado River at the time of the orig-
inal surveys and thus were a part of the riverbed
(Stip. IV. 1.), while BLM had the burden of proving
that those lands were islands at the time of the orig-
inal surveys (Stip. V. 1.).
The stipulation also embraced various legal issues.
The parties agreed to the following legal definition of
"island": "An 'Island' is a permanent land mass
rising from the bed of a meanderable body of water
above the mean high water mark, separated from the
mainland by a perpetual channel" (Stip. VI 5.). They
also recognized that, a legal issue remaining to be de-
termined was "[w]hether at the time of the original
surveys of the disputed lands there was in effect an
official or unofficial policy of the Government not to
survey islands falling within the regular course of
the surveys of public lands" (Stip. VII. 1.).
At the outset of the hearing, claimants stated their
position that the controversy could be resolved as a
matter of law without the necessity for a hearing.
They asserted that although the survey manuals and
instructions mandated the meandering of all islands
encountered while surveying, the original surveyors
had not meandered the disputed land masses; rather
they had merely noted them as topographical fea-
tures. Because BLM had stipulated that the sur-
veyors had exactly complied with their instructions
and that the original surveys were not erroneous,
claimants argued that BLM had, in effect, admitted
that the disputed lands were not islands at the time
of the original surveys (see Tr. 13-25).
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45a
Claimants, however, did not request a ruling on
their assertion; rather, they proceeded to call three
witnesses and introduce over 25 exhibits to demon-
strate that the disputed parcels were below the ordi-
nary high water mark of the Colorado River, which
they equated with the mean annual flood level of the
river. BLM presented the testimony of five witnesses
and over 30 exhibits to support its position that the
land masses were islands in existence at the time
of the original surveys, and that the Government's
policy at the time of the original surveys was not
to survey all islands in the regular course of survey-
ing public land. The parties filed extensive posthear-
ing submissions including proposed findings of fact
and conclusions of law.
II. Judge Child's Decision
In his December 21, 1989," decision, Judge Child
framed three issues raised in the case: (1) whether
the disputed parcels were "islands" at the time of
the original surveys; (2) whether the parcels were
"omitted" from the original surveys; and (3)
whether the parcels were property of the United
States. Then, relying on testimony presented at the
hearing, he recited some geologic history of the area
as it related to the river, adopting the conclusion
that:
In the vicinity of the reach, the Colorado can
be said to be in a state of semi-disequilibrium,
still showing the after effects of the glaciation.
The tendency over time is for the anabranches
of the channel to be resolved and the land masses
within the river to become attached to the flood-
plain to the end that the river will become a
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46a
single thread stream. Thus, this reach of the
Colorado River is in the process of healing itself
from an unstable stream to a stable, single-
thread fluvial system.
(Decision at 3).
After accepting the parties' stipulation as con-
trolling for the purposes of this case, the Judge ad-
dressed each of the identified issues, first determin-
ing that the land masses were not islands at the
time of the original surveys. He explained:
Cursory inspection of the valley bottom through
which this reach of the Colorado River runs
would impress any rational person or surveyor
that this river was in a state of constant change
and the parcels within the [r]iver unstable and
subject to being altered or eliminated at the
whim of the river during any seasonal runoff,
An examination of the many exhibits prepared
and offered by [BLM] cannot but impress even
the casual observer that these parcels have gone
through dramatic shifts, alterations and changes
since the original surveys in 1889 and 1891.
Single parcels have divided and multiple parcels
have united. None of the parcels has shown it-
self to have the capacity for constancy since it
was noted by the surveyors and placed on the
original plat. (See particularly Exhibits G-3,
G-5, G-28, G-29) [.]
(Decision at 8). He found that the evidence failed
to demonstrate that the parcels were fast, dry lands
at the time of the original surveys.
The Judge's resolution of this issue focused on the
stipulated definition of an island which required a
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47a
"'permanent land mass' separated from the main-
land by a 'perpetual channel'." Id. He found that
the disputed parcels lacked permanency because
BLM's geologic evidence indicated that this reach of
the Colorado River was in a state of "[s]emi-dis-
equilibrium which would tend to straighten itself out
and remove land masses from the course of its cur-
rent." Id. He distinguished a case cited by BLM,
Ritter v. Morton, 513 F.2d 942 (9th Cir. 1975), on
the ground that the court in Ritter applied an "ele-
mentary school definition" of island "and did not
concern itself with the permanent nature of the land
mass in question." Id. at 9.
After citing the definition of "perpetual" in
Webster's II New Riverside University Dictionary,
1984 cd., as meaning "[l]asting for eternity: never
ending," he stated that the channels which separated
the land masses from the mainland were not perpet-
ual channels because no channel would separate the
parcels from the mainland when the parcels were
inundated by water when the river was at flood stage,
nor would the parcels be separated by a channel from
the mainland when the river was at a low stage and
the channels were dry. He found that:
In order for a channel to separate a land mass
in a river from the unplands or mainland, it
must contain water throughout its length. In
order to meet the definition of island agreed to
by the parties, such a channel must do so per-
petually.
Id.
He concluded that, under the stipulated definition
of island, the parcels were not islands at the time
of the original surveys or at the time of the hearing.
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48a
Judge Child also found that the parcels were not
omitted from the original surveys. He cited prece-
dent holding that omitted islands remain public do-
main and may he surveyed and disposed of by the
United States, but noted that in order for ownership
to be retained by the United States, a present island
must have existed in its present form as fast, dry
land at the time of the original survey, and its omis-
sion from the original survey must have been an
error. He noted that although the surveyors had
meandered some islands in the river, they did not
meander the disputed parcels; rather, they described
them in their field notes as topographic features. He
also referred to the parties stipulation that the sur-
veyors had conducted the original surveys in exact
conformance with the governing instructions and that
those surveys were neither fraudulent nor erroneous.
Judge Child, therefore, found that the original sur-
veyors had committed no error in omitting these par-
cels from their surveys, suggesting that they appar-
ently had "concluded that the parcels in question
lacked the permanency essential to qualify as islands"
(Decision at 11) and had recognized "the futility of
meandering these parcels, since a meander performed
on Tuesday may well be unrecognizable on Wednes-
day, given the instability of the Colorado River at
this juncture." Id. In short, he concluded that the
parcels were not islands omitted from the original
surveys, but were properly included in the surveys
as topographical features, not islands.
Finally, Judge Child found that the disputed par-
cels were not property of the United States because
"[u]nder the circumstances of this case, the original
surveyors were justified in viewing the parcels in
question not to be islands, but rather part of the
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49a
shifting. bed of the Colorado River. As such they
passed with the uplands on issuance of patent thereto"
(Decision at 11). 6.
Thus, Judge Child determined that the 1962-1987
surveys of the disputed parcels were. legally and
factually incorrect, and reversed BLM's decision ac-
cepting the surveys of Parcels 9, 10, 14, 20, 21, "and
22 because those parcels were not property of the
United States.
III. Arguments of the Parties
In its opening brief, BLM argues that the Judge
ignored all the facts developed at the hearing con-
cerning the existence of the disputed land masses at
the time of the original surveys and virtually all the
law on omitted islands. BLM asserts that the Judge's
decision is premised on two erroneous factual find-
ings: (1) the present parcels were not in existence as
islands at the time of the original surveys and (2)
the land masses are not islands because the side chan-
nels do not carry water at all times.
BLM contends that virtually all the evidence demon-
strates that the parcels were, in fact, islands at the
___________________(footnotes)
6 The Judge also specifically found as facts that each of the
parcels had surface areas above the ordinary high water mark
at the time of the original survey and could have been sur-
veyed, and that "[t]he ordinary high water mark, mean high
water line and vegetation line approximate the elevation
along the river of the mean annual flow, which approximates
the meander lines (Decision at 13). Further, he found as a
conclusion of law that no evidence supported BLM's conten-
tion that the parcels had been omitted from the original
surveys because they could not be economically surveyed,
noting that the contracts for survey required the survey of
all islands in the involved reach of the Colorado River (De-
cision at 14).
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50a
time of the original surveys. It argues that its evi-
dence shows that the parcels were expressly noted in
the original surveyors' field notes; the parcels were
all shown as islands on the original plats of survey;
each parcel now has one or more trees on it which
predate the original 1889 and 1891 surveys; the par-
cels were fast, dry land at the time of the original
surveys; the parcels are all surrounded today by
permanent channels, except where the channels have
been filled in by the adjacent riparian landowners;
and the size, shape, and location of the parcels today
are in close congruence with those shown on the
original survey plats.
BLM argues that these facts were clearly proven by
the testimony and documentary evidence it introduced,
including the testimony of two geologists: Dr. Waite
R. Osterkamp, an expert in fluvial geomorphology,
who testified by the morphology of the river and par-
cels, and opined that the parcels were all 100 to 200
years old and that their appearance had probably
changed little since the surveys were performed; and
Dr. Gordon C. Jacoby, an expert in dendrochronology,
who discussed the dating of tree bore samples taken
on the parcels and concluded that because each parcel
contained at least one tree predating the original sur-
veys, the parcels had to have been in existence at that
time. BLM also asserts that the testimony of its ex-
perienced surveys, as well as the exhibits it intro-
duced, provide further support for its position. One
of those surveyors, Donald W. Ashbaugh, who con-
ducted the 1982-87 investigation, explained at the
hearing how he reached his conclusion that the parcels
were islands omitted from the original surveys.
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51a
BLM discusses each parcel individually, citing the
testimony and exhibits relating to the parcel's exist-
ence as an island at the time of the original surveys
(BLM Brief at 15-26). It asserts that claimants pro-
duced nothing at the hearing to rebut any of its proof. 7.
BLM claims that the Judge completely disregarded
all of its uncontroverted evidence. Instead, BLM sub-
mits, the Judge focused solely on small portions of
Osterkamp's testimony to conclude that the parcels
were impermanent, while ignoring the bulk of that
testimony, including Osterkamp's expert opinion that
the parcels were in existence as islands in 1889 and
1891. BLM further argues that the Judge erroneously
concluded that the parcels were not islands because
some of the side channels separating them from the
upland did not have water in them at all times. Ac-
cording to BLM, the existence of the channels today
has relevance only to the extent it sheds light on the
condition of the parcels at the time of the original
surveys. It argues that a channel is a permanent
___________________(footnotes)
7 Instead, BLM argues, claimants' evidence at the hearing
focused on demonstrating that the parcels were not legally
in existence in 1889 and 1891 because they were completely
submerged by the river during the height of flood stage,
apparently equating the ordinary or mean high water mark
with peak flood waters. While BLM agrees that the parcels
and most other geomorphic features in a flood plain are
inundated during a flood, it insists that this fact is irrelevant
since the ordinary high water mark of the river has nothing
to do with peak flood waters, but is, instead, the level of the
water during average flow conditions. The Judge agreed with
BLM's definition of the ordinary or mean high water mark
(see Decision at 13 and note 6, supra), and the meaning of
this term is not an issue in this appeal.
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52a
geomorphic feature which frequently conveys water,
but may sometimes be dry, citing legal authority sup-
porting its position, which BLM claims the Judge dis-
regarded. BLM contends that contrary to the Judge's
assumption, the parties did not intend for the stipula-
tion to mandate that the channel always be filled with
water asserting that if the parties had so intended,
they would have used words explicitly indicating that
the channels must be filled with water at all times.
Furthermore, BLM asserts, if the stipulation meant
what the Judge suggested, there would have been no
reason for a hearing. 8
In short, BLM essentially argues that the Judge
erred in concluding that the disputed parcels were not
islands at the time of the original surveys because he
overlooked the unrebutted evidence establishing their
existence as fast, dry land at that time and failed to
recognize that channels separating islands from the
mainland need not always be filled with water. BLM
stresses that it has established that the disputed par-
cels were islands at the time of the original surveys,
and that modern case law supports its ownership of
those islands. BLM requests that its original decision
dismissing the protests and accepting the 1982-87 sur-
veys of those islands be upheld. 9
___________________(footnotes)
8 BLM also asserts that, contrary to the Judge's conclusion,
it has demonstrated that it was the practice of nineteenth
century surveyors not to survey nonagricultural land, includ-
ing islands, in the regular course of their surveys.
9 Attachment B to BLM's opening brief consists of a letter
from Jacoby, one of BLM's witnesses, commenting on the
Judge's decision. Claimants filed a motion to strike that
attachment on the ground that it was an inappropriate at-
tempt to submit additional evidence after the conclusion of
the hearing. By order dated Apr. 20, 1990, we took that
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53a
In its answer, claimants argue that the detailed
stipulation agreed to by the parties conclusively pre-
cludes all of BLM's arguments and permits no con-
clusion other than that reached by the Judge. They
stress that BLM stipulated that the survey instruc-
tions directed the original surveyors to meander is-
lands and to note topographical features; the involved
surveyors exactly complied with the applicable instruc-
tions; the surveys were neither fraudulent nor errone-
ous; and in order to be an island, the land mass must
be separated from the mainland by a perpetual chan-
nel. Claimants assert that "[i]t is unmeaningful that
either Osterkamp, Jacoby, or even the Supreme Court
would otherwise define an island. The definition used
was taken from the 1864 Instructions to surveyors.
The parties agreed on the definition for the purposes
of this case and the (Judge) found it to be control-
ling" (Answer at 15).
Claimants contend that the only way BLM could
prove that the parcels were islands at the time of the
original surveys would be to show error in those sur-
veys. Since BLM stipulated that those surveys were
not erroneous, claimants argue that any attempt to
show error would be in defiance of the stipulation and
cannot be allowed. Therefore, they request that the
Judge's decision be affirmed.
In response, BLM denies that it is attempting to
disclaim the stipulation and states that it fully sup-
ports the stipulation as long as it is read in its totality,
___________________(footnotes)
motion under advisement, indicating that we would rule on
it when we addressed the merits of the appeal. Jacoby's com-
ments on Judge Child's opinion are irrelevant to our consider-
ation of BLM's appeal. For that reason, we hereby grant
claimants' motion to strike Attachment B to BLM's brief.
See 43 CFR 4.24(a).
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54a
as written, and in light of the fact that it was drafted
by claimants. It contends that the only areas of dis-
pute concern the definition of an island and whether
BLM has stipulated away its case by agreeing that
the original surveys were correctly done. BLM argues
that the definition of island, which comes from old
survey manuals, does not include a sentence requiring
that the perpetual channel contain flowing water at
all times. Furthermore, ELM asserts, claimants' sug-
gestion that relevant case law should be ignored in
interpreting this definition lacks legal support and
defies common sense.
BLM admits that it agreed that the original surveys
were correctly done, but contends that it did so in
order to eliminate the question of gross error or fraud
as possible legal issues in this case. It asserts that
other provisions of the stipulation clearly indicate that
the existence of the islands and the practice of 19th
century surveyors concerning meandering islands
were very much at issue in the case, citing part of
the stipulation requiring BLM to prove that the lands
were islands at the time of the original surveys (Stip.
V. 1.) and that part which dentified as a legal issue
to be determined whether there existed at the time of
the original surveys an official or unofficial Govern-
ment policy regarding the surveying of islands (Stip.
VII. 1.). BLM argues that there would have been no
need for these stipulations, if it had agreed as claim-
ants allege.
BLM suggests that the stipulation appears to be
both contradictory and ambiguous. Therefore, BLM
asserts, the stipulation may not be relied on as con-
clusive, and the entire record must be reviewed to
determine if it supports the stipulated facts.
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55a
BLM contends that it presented evidence explain-
ing that the reason the surveyors followed some of
their instructions (i.e., to note all topographical
features), but disregarded others (i.e., to survey all
islands) was because surveyors at that time did not
survey islands which were not useful for agricultural
purposes. It further emphasizes that the preponder-
ance of the evidence definitively establishes the exist-
ence of the parcels as islands at the time of the
original surveys, and argues that it would be improper
for the Board to hold that the islands did not exist in
1889 and 1891 solely because of the stipulation.
IV. Discussion
The Secretary of the Interior is authorized and
obligated "to consider and determine what lands are
public lands, what public lands have been or should
be surveyed, and what public lands have been or re-
main to be disposed of by the United States." R.A.
Mikelson, 26 IBLA 1, 8 (1976). In Emma S. Peter-
son, 39 L.D. 566, 567 (1911), this Department held
that the United States has the authority to survey an
island, located in navigable or nonnavigable waters,
omitted from an original township survey if it ap-
pears that at the time of the original survey the island
was a well-defined body of public land. From that time
on, the Department has consistently maintained that
an unsurveyed island, whether located in navigable or
nonnavigable waters, remains public domain, does not
pass with the bed under navigable waters to a state
upon statehood or as an appurtenance to a patent of
riparian land abutting nonnavigable waters, and may
be surveyed and disposed of by the United States.
Mr. & Mrs. Thomas Dekker, 114 IBLA 302, 305-06
(1990); Northern Michigan Exploration Co., 114
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56a
IBLA 177, 186-88, 97 I.D. 171, 175-76 (1990); Olive
Wheeler, 108 IBLA 296, 301 (1989), and authorities
cited therein.
In Scott v. Lattig, 227 U.S. 229, 240-42 (1913),
the Supreme Court applied the same rule to islands in
navigable waters, holding that the omission of an
island from survey does not divest the United States
of title to the island nor interpose any obstacle to
surveying it at a later date if the island existed at
the time of the original survey as fast, dry land above
the mean high water mark. The Court explained that
such an island was not part of the bed of the river
and, therefore, title to it did not pass with the bed
of the river. Id. at 244. See Texas v. Louisiana, 410
U.S. 702, 713 (1973) (reaffirming the vitality of
Scott v. Lattig) ; see also R. A. Mikelson, supra at 9.
We have recently reaffirmed that this rule applies to
islands in nonnavigable waters, despite the conflicting
holding in Bourgeois v. United States, 545 F.2d 727
(Ct. Cl. 1977). 10. See Mr. & Mrs. Thomas Dekker,
___________________(footnotes)
10 The most critical reasoning flaw in Bourgeois v. United
States, supra, was the attempt to establish a dichotomy be-
tween unsurveyed islands found in navigable bodies of water
and those located in nonnavigable bodies of water by, in
effect, ascribing a varying "intent" to retain or convey de-
pending on whether or not the water body was navigable.
Thus, if the island is located in a navigable body of water,
the island is deemed to retain its public domain status (under
the theory that nothing passes except by intent) whereas if
it is located in a nonnavigable body it is deemed to pass as an
appurtenance of the riparian patent (if state law so provides)
unless a contrary intent is clearly expressed. Thus, the
Bourgeois theory would postulate that when a surveyor fails
to survey an island in a navigable stream he does so knowing
that his failure to survey the island will not abrogate the
title of the United States to the island, but when he fails to
survey an island in a nonnavigable stream he does so because,
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57a
supra at 306-07; Northern Michigan Exploration Co.,
supra at 186, 97 I.D. at 175-76; Olive Wheeler, supra
at 301.
Claimants contend that none of the evidence pre-
sented at the hearing nor any of the case law cited by
BLM has any bearing on this ease because the stipu-
lation mandates the conclusion that the parcels were
not islands at the time of the original surveys. We
must reject this contention.
A stipulation is a contract to which the general
rules of contract interpretation apply. United States
___________________(footnotes)
in his view, it is not an island worthy of survey and the
United States should make no claim thereto.
This duality of approach might be understandable if, in
fact, navigability determinations were a function of a cadas-
tral surveyor; they are not. See State of Montana, 11 IBLA
3, 8, 80 I.D. 312, 314 (1973) ("The surveyors have no au-
thority to make such [navigability] determinations"). More-
over, in many cases it would be literally impossible to make
navigability determinations as of the date of survey, for the
simple reason that the critical date for navigability determi-
nations is the date of admission of the State into the Union
and numerous surveys were completed prior to that date. In
this case, the basis for the agreement that the Colorado River
is nonnavigable throughout the reach in question is an opinion
of the Colorado Attorney General, rendered on Mar. 30, 1950,
that "there are no navigable waters of the United States in
Colorado" (Exh. H of Exh. A of Exh. A-23). Even accepting
this naked assertion of a conclusion which is totally unsup-
ported by any factual analysis (but see United States v. Holt
State Bank, 270 U.S. 49, 56 (1926) "streams or lakes which
are navigable in fact must be regarded as navigable in law"),
it is clear that the Colorado Attorney General's determination
of navigability postdated the original surveys in this case by
well over 50 years. Any attempt to premise a differentiation
in the treatment of islands in navigable and nonnavigable
bodies of water based on the subjective intent of the surveyor
is simply wrong.
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58a
v. Ideal Cement Co., 5 IBLA 235, 241, 79 I.D. 117,
120 (1972), aff'd, Ideal Basics Industries, Inc. v.
Morton, 542 F.2d 1364 (9th Cir. 1976). The stipu-
lation should be considered as a whole with each pro-
vision given a reasonable meaning and none of it left
useless. ITT Arctic Services Inc. v. United Slates,
524 F.2d 680, 684 (Ct. Cl. 1975). See RESTATE-
MENT (SECOND) OF CONTRACTS 202(a),
203 (a) (1981). Claimants' reading of the stipula-
tion renders superfluous the provision recognizing
that whether the disputed parcels were islands at the
time of the original surveys was a claimed fact "on
which the Government shall put on its proof" ( Stip.
V.). Additionally, BLM's agreement that the orig-
inal surveys were correct and in exact accordance
with the instructions must be considered in conjunc-
tion with its position, identified in the stipulation as
a legal issue to be determined, that it was the Govern-
ment's policy at the time of the original surveys not
to survey islands falling within the regular course of
public land surveys (Stip. VII.). The stipulation, read
as a whole, clearly indicates that BLM did not stipu-
late away its case. See Ideal Basic Industries, Inc. v.
Morton, supra at 1369-70 (ambiguous stipulations,
taken as a whole, were insufficient to amount to an
admission).
Thus, we turn to consideration of the entire
record compiled in this case to resolve the issues
raised. The ultimate issue for consideration is
whether, at the time of the original surveys, the dis-
puted parcels were islands omitted from those sur-
veys. Resolution of that issue requires that we focus
on the condition of the parcels at the time of the orig-
inal surveys, because if the parcels at issue here
existed as islands at the time of the original 1889 and
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59a
1891 surveys, title to them remained in the United
States, and BLM's 1982-87 surveys were properly ac-
cepted. See Ritter v. Morton, 513 F.2d 942, 947-48,
950 (9th Cir.), cert. denied, 423 U.S. 947 (1975);
see also Scott v. Lattig, supra at 241-42. Evidence
concerning subsequent changes in the parcels is rele-
vant only to the extent it reflects on the condition of
the parcels in 1889 and 1891. Thus, while it must be
established that an identifiable land mass existed as
an island as of the date of survey, there is no require-
ment that it must have been in continuous existence
as an island since that time, nor is there any require-
ment that its size and shape remain constant over
that period of time.
The Judge concluded that the parcels were not is-
lands because the land masses were not fast, dry land
at the time of the original surveys, nor were they
permanent land masses separated from the mainland
by perpetual channels. He reached this conclusion
through an extremely narrow, literal interpretation
of the stipulated definition of an island and a highly
selective view of the evidence introduced at the hear-
ing.
The parties agreed to a legal definition of "island"
as "a permanent land mass rising from the bed of a
meanderable body of water above the mean high water
mark, separated from the mainland by a perpetual
channel" (Stip. VI. 5.). 11. The Judge considered this
___________________(footnotes)
11 Although the Judge found that he was constrained by this
legal definition, stipulations as to legal matters are not bind-
ing on adjudicators. See, e.g., Saviano v. Commissioner, 765
F.2d 643, 645 (7th Cir. 1985). Indeed, this Board has ex-
pressly refused to countenance an erroneous stipulation of
law, even where to do so would benefit the United States. See
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60a
definition to be more stringent than an "elementary
school definition" of island, and he distinguished Rit-
ter v. Morton on the basis that the court had applied
the less rigid "elementary school definition" in that
case. BLM asserts that the stipulated definition must
be interpreted in light of relevant case law. We
agree.
We find nothing in the circumstances surrounding
the agreement of the parties to the stipulation which
would. support an overly restrictive meaning of the
term "island," See National Audubon Society, Inc. v.
Watt, 678 F.2d 299, 307 (D.C. Cir. 1982) (a stipu-
lation must be interpreted in light of its evident pur-
pose as gleaned from the circumstances under which
the agreement was made). No reason has been posi-
ted why the parties would choose to use the term in
other than its usual sense, and we believe that the
stipulated definition, reasonably construed, does not
preclude the application of common sense and rele-
vant case law.
Judge Child found that the parcels were not fast,
dry land at the time of the original surveys because
they were unstable and ephemeral. According to the
Judge, the evidence demonstrated that the parcels
had gone through dramatic shifts, alterations, and
changes since the original surveys, with single par-
cels dividing and multiple parcels uniting, and he
concluded that none of the parcels had shown any
capacity for constancy. In support of this conclusion,
he cited Exhibits G-3, G-5, G-28, and G-29, which de-
___________________(footnotes)
United States v. Williamson, 45 IBLA 264, 275-77, 87 I.D. 34,
40-41 (1980).
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61a
pict the shape and location of parcels at various times
over the years. 12
The key question, however, is whether these parcels
were fast, dry land above the mean high water mark
and separated from the mainland at the time of the
original surveys. We find that the evidence in the
present record overwhelmingly demonstrates that the
six disputed parcels existed as islands at the time of
the original surveys and that Judge Child ignored
that evidence.
The disputed parcels clearly existed in some form
in 1889 and 1891. The original surveyors mentioned
them as topographical features in their field notes
(Decision at 6), and the parcels appear on the plats
prepared from those notes as surrounded by flowing
water (see Tr. 262, testimony of Jacoby). BLM's
virtually uncontested evidence establishes that each
parcel has at least one tree on it which predates the
original survey; each parcel was fast, dry land rising
above the mean high water mark and separated from
the mainland by a channel at that time; channels
are in evidence today surrounding each parcel, al-
though in some cases channels have been filled in by
the adjacent riparian land owners; and the current
size, shape, and location of each parcel are substan-
tially similar to those shown on the original plats
(see BLM Brief at 15-26 for the specific evidence
pertaining to. each parcel ). Thus, BLM presented
witnesses and exhibits establishing the existence of
the parcels as islands in 1889 and 1891.
___________________(footnotes)
12 BLM introduced these exhibits to demonstrate, among
other things, that the parcels have retained essentially the
same size, shape, and location over the years, and the expert
witnesses called by BLM testified that those exhibits did so
demonstrate.
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62a
Claimants introduced no direct evidence rebutting
that introduced by BLM concerning the condition of
the parcels in 1889 and 1891. Instead, they focused
on demonstrating that these parcels were partially,
if not totally, inundated by the river in its flood
stage. The mean or ordinary high water mark, how-
ever, as found by Judge Child, is not synonymous
with the height of the water in the river during flood
stage; rather, that term designates the level of the
ordinary high flow of the river, and is readily ob-
servable as the line below which the soil is unfit
for vegetation. See, e.g., State v. Bonelli Cattle Co.,
108 Ariz. 258, 495 P.2d 1312, 1314-15 (1972), rev'd
on other grounds, 414 U.S. 313 (1973); United States
v. Claridge, 416 F.2d 933, 934 (9th Cir. 1969), cert.
denied, 397 U.S. 961 (1970). The fact that these
parcels are partially or completely submerged during
flood stage does not preclude them from being islands.
See Raide v. Dollar, 34 Idaho 682, 203 P. 469, 472
(1921).
We find that the great weight of the evidence in
the record clearly demonstrates that the parcels were
islands at the time of the original surveys and that
they were omitted from those surveys.
Despite all this evidence, the Judge found that the
parcels were not permanent land masses, as required
by the stipulated definition, because they would even-
tually become attached to the mainland. He appar-
ently based this finding on Osterkamp's testimony
that the river was in a state of semi-disequilibrium,
and that over time the land masses within the river
would become attached to the floodplain and the river
would become a single thread stream. Osterkamp
also testified, however, that the time involved for that
to happen would be "centuries, if not millenia" (Tr.
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63a
364). Judge Child evidently discounted that testi-
mony, at least partially, because of his position,
based on the stipulated definition of island, that any
channel which separated a land mass from the main-
land had to be "perpetual," i.e., lasting for eternity
(see discussion infra).
Given that over geologic time natural forces, such
as erosion and accretion, change the shape and size
of land masses, no land mass located in a river could
satisfy Judge Child's interpretation of the terms
"permanent" and "perpetual." Nothing in the stipu-
lation, read in its entirety, indicates that the parties
intended such a result. Clearly, BLM would never
have agreed to such an interpretation, because it would
have precluded BLM from establishing that the land
masses were islands at the time of the original sur-
veys, and the parties agreed in the stipulation that
BLM was required to provide evidence of that fact
at the hearing (Stip. V). 13
The Judge also found that the channels separating
the parcels from the mainland were not perpetual
channels because they did not separate the parcels
from the mainland when the parcels were in-
undated by water during the river's flood stages and
when the channels were dry during low river flow.
He concluded that in order for a channel to separate
a land mass in a river from the mainland, it must
___________________(footnotes)
13 It appears more reasonable to assume that the Parties
used the term "permanent" to designate a stable land forma-
tion above the mean high water mark, as opposed to a transi-
tory, shifting sand bar. See, e.g., United States v. Otley, 127
F.2d 988, 1001 (9th Cir. 1942); State of Oregon, 60 I.D. 314,
315 (1949). Consistent with our discussion supra, we find
that the stipulated definition of "island" only requires that
the land masses be permanent, not that the islands as islands
be permanent.
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64a
contain water throughout its length, and that to meet
the stipulated definition of island, such a channel
must do so perpetually. We find these conclusions
to be erroneous.
A channel is the depression of a stream bed below
the permanent banks which forms a conduit through
which waters flow and which may be full at some
times and at others nearly, if not completely, dry.
State v. Muncie Pulp Co., 119 Term. 47, 104 S.W.
437, 443 (1907). It consists of a well-defined bed
and banks. The bed carries the waters at their ordi-
nary stage although
[i]n extremely high water the bed maybe much
more submerged; [and] at other times it may
not even be covered, but by close examination of
the bed and banks of a natural water course one
may readily distinguish the exact line of de-
markation between them. * * * The banks of a
water course are the elevations of land which
confine the waters to their natural channel when
they rise to the highest point at which they are
confined to a definite course and channel. Al-
though at times these banks may be overflowed
by flood waters, yet they themselves are un-
changed, though not necessarily unchangeable.
[Citations omitted.]
Maricopa County Municipal Water Conservation Dis-
trict No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4
P.2d 369, 376-77 (1931).
Thus, a channel is an identifiable geomorphic struc-
ture which exists independently of the water which
may flow through it. BLM established that each of
the disputed parcels was separated from the main-
land by a channel at the time of the original surveys,
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65a
and that these channels were still identifiable at the
time of the hearing, although some had been filled in
by the riparian land owners.
We find that this evidence satisfies the stipulated
definition of an island, when the stipulation is read
as a whole and in light of relevant case law. The evi-
dence supports a finding that the parcels existed as
islands at the time of the original surveys, and the
fact that, over the course of geologic time, they will
eventually become part of the mainland does not pre-
clude such a finding. See R. A. Mikelson, .supra, at 9;
see also United States v. Severson, 447 F.2d 631 (7th
Cir. 1971) cert. denied, 404 U.S. 1039 (1972) . 14
Judge Child also found that, under Scott v. Lattig,
supra, the omission of an island from an original sur-
vey had to be the result of error in order for the
United States to retain title to the omitted islands.
He concluded that the surveyors did not omit the is-
lands as a result of error, noting that the parcels were
properly identified as topographic features and ap-
peared on the plats of survey as such.
We have held that the parcels were islands, not
mere topographic features, at the time of the orig-
inal surveys. A consequence of that holding is that
the failure of the original surveyors to survey the
islands in question must either have been the result
of an error 15. or simply the consequence of an unoffi-
___________________(footnotes)
14 In R. A. Milkelson, this Board stated, citing Severson,
that when an island in an nonnavigable river is omitted from
a survey, title to the island remains in "the United States and
"the island remains subject to survey despite the disappear-
ance of the channel separating the island from the lots which
were formerly riparian." 26 . IBLA at 9 (emphasis added).
15 Although the parties stipulated that there was no error
in the original surveys, if substantial evidence contrary to
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66a
cial Government policy not to survey islands unsuit-
able for cultivation. In either case, their failure to
survey the islands did not divest the United States
of title to those islands, See Northern Michigan Ex-
ploration Co., supra at 187-88 n.13, 97 I.D. at 176
n.13. 16
Based on the entire record before us, we find that
the parcels were islands omitted from the original
surveys conducted in 1889 and 1891. Title to these
islands remains in the United States, and they were
properly surveyed by BLM.
Accordingly, pursuant to the authority delegated
to the Board of Land Appeals by the Secretary of
___________________(footnotes)
a stipulation exists in the record, that stipulation may be
disregarded. See Smith v. Blackburn, 785 F.2d 545, 549 (5th
Cir. 1986); Coastal States Marketing, Inc. v. Hunt, 694 F.2d
1358, 1369 (5th Cir. ), reh'g denied, 699 F.2d 1163 (5th Cir.
1983).
16 We note that in C. Albert White, A History of the Rec-
tangular System of Survey 81 (1980), following the citation
of a Jan. 29, 1824, letter from the commissioner of the Gen-
eral Land Office (GLO) to the Surveyor General setting forth
a policy on the surveying of islands in which the Commis-
sioner stated that "when a favorable opportunity occurs you
may take measures to cause such of them to be surveyed as
from the best information you can collect, may be worth
the expense," White explained:
"This treatment of islands always remained. Unless an
island was large, it was seldom surveyed during the regular,
original rectangular surveys. Most islands were small and
the cost of surveying, platting, and sale was greater than
the monetary return to the government of $1.25 per acre.
But the GLO always did and still does consider islands public
lands until surveyed, platted, and sold."
See also Loyla C. Waskul, 102 IBLA 241, 246-47 (1988);
Joseph Tomalino, 42 IBLA 117,120 (1979).
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67a
the Interior, 43 CFR 4.1, the decision of Administra-
tive Law Judge Ramon M. Child is reversed.
/s/ Bruce R. Harris
BRUCE R. HARRIS
Administrative Judge
I concur:
/s/ James L. Burski
JAMES L. BURSKI
Administrative Judge
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APPENDIX E
UNITED STATES DISTRICT COURT
D. COLORADO
Civ. A. No. 91-C-470
EDWARD H. KOCH, ET AL., PLAINTIFFS
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS
June 4, 1993
MEMORANDUM OPINION AND ORDER
CARRIGAN, District Judge.
Plaintiffs, Edward Koch, Walter Lemon, Roberta
Lemon, Edward Juhan and Anthony Zarlengo, seek
review of an Interior Board of Land Appeals decision
dated February 21, 1991. That order affirmed dis-
missal of the plaintiffs' protests against the filing of
surveys of six islands in the Colorado River. Defend-
ants, United States, the Department of the Interior,
the Interior Board of Land Appeals (IBLA) and the
Bureau of Land Management (BLM), have moved
for summary judgment. Plaintiffs have responded by
opposing that motion and by cross-moving for sum-
mary judgment.
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69a
The parties have fully briefed the issues and oral
argument would not be helpful. Jurisdiction exists
under 28 U.S.C. 1331.
I. Factual and Procedural Background.
The original surveys of the areas in question were
performed in 1889 and 1891 by surveyors who did
not meander any of the parcels at issue. However, the
surveyors identified the parcels in their field notes.
The parcels then appeared on the plats prepared from
those notes. The United States patented the surveyed
land adjacent to the Colorado River, incorporating by
reference the relevant plats and field notes.
In 1982, the BLM commenced an investigation to
determine ownership of twenty-two land masses in
the Colorado River between Glenwood Springs and
Grand Junctionj Colorado. The BLM determined that
nine of the twenty-two land masses were islands
which existed and had not been meandered at the time
of the original surveys. On the basis of that investi-
gation, the BLM accepted surveys of those nine islands
performed between 1982 and 1987 and announced in
the Federal Register that it would officially file the
survey plats in its Colorado office.
Prior to the proposed date for filing the survey
plats, a number of individuals protested the filing.
The protectors argued that they owned the islands un-
der patents from the United States which described
the patented lands by reference to the original survey
plats for the townships in question. On July 28, 1988,
the BLM's Colorado State Director dismissed the pro-
tests on the ground that the "United States claims
ownership of the islands because they are islands not
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70a
previously surveyed which were in existence at the
time of the original survey of the surrounding lands."
Certain of the protectors appealed the BLM deci-
sion to the IBLA, and requested a hearing. 1. The
IBLA granted the request for a hearing and referred
the case to an Administrative Law Judge (ALJ).
In a sixteen-page pre-hearing stipulating made a
part of the hearing record, the parties stipulated that
the stretch of the Colorado River containing the par-
cels at issue is non-navigable. The stipulation included
excerpts from the surveying manuals and instructions
directing the surveyors to meander islands and to note
topographical features. The parties agreed that
"[t]he surveys of the involved lands were accepted
as having been completed in exact conformance with
the [surveying] Instructions," and that "[t]he origi-
nal surveys were neither fraudulent nor erroneous."
Under the terms of the stipulation, the plaintiffs
were to prove that the subject lands were below the
ordinary high water mark of the Colorado River at
the time of the original surveys and thus were a part
of the riverbed, while the BLM was to prove that those
lands were islands at the time of the original surveys.
The stipulation further defined an "island" as "a
permanent land mass rising from the bed of a me-
___________________(footnotes)
1 The instant action involves six of the nine islands for
which surveys were accepted. The claimants of two of the
islands failed to appeal from the BLM's dismissal of their
protests. In addition, the BLM did not appeal the ruling
of the Administrative Law Judge that another of the parcels
was not an island at the time of the original survey. The
six tracts here in question are identified as islands 9 (located
in sec. 25, T. 6 S., R. 95 W.), 10 (located in sec. 35, T. 6
S., R. 95 W.), 14 (located in sec. 7, T. 7 S., R. 95 W.), 20, 21
and 22 (located in sec. 7, T. 8 S., R. 96 W.).
---------------------------------------- Page Break ----------------------------------------
71a
anderable body of water above the mean high water
mark, separated from the mainland by a perpetual
channel." Finally, the parties stipulated that "the
original Government Land Office plats and field notes
of the areas surveyed, having been incorporated by
reference in the original patents, are a part of the
description of the lands granted."
Following a hearing held on June 13-16, 1989, the
ALJ concluded that the parcels at issue were not
islands omitted from the original surveys of the area
and, therefore, were not the property of the United
States.
The BLM appealed that decision to the IBLA. On
February 21, 1991, the IBLA reversed. The IBLA
found that the parcels had been omitted from the
original surveys conducted in 1889 and 1891 and that
"[t]itle to these islands remains in the United States,
and they were properly surveyed by BLM." The
IBLA concluded that the United States had the au-
thority to survey the islands because they were well
defined bodies of public land that were omitted from
the original township survey.
Thereafter, the plaintiffs filed the instant appeal.
II. Analysis
A. Decision Being Reviewed and the Scope and
Standard of Review.
The parties disagree whether the decision to be
reviewed is that of the ALJ or the IBLA. Plaintiffs
contend that the IBLA was, in essence sitting as an
appellate court when it reviewed the ALJ's decision
and therefore was bound by the ALJ's factual determi-
nations unless they were clearly erroneous.
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72a
"Under administrative law principles, an agency
or board is free either to adopt or reject an ALJ's
findings and conclusions of law." Starrett v. Special
Counsel, 792 F.2d 1246, 1252 (4th Cir. 1986). "On
appeal from or review of the initial decision, the
agency has all the power which it would have in
making the initial decision except as it may limit the
issues on notice or by rule." Id. (quoting 5 U.S.C.
557(b)). The IBLA retains the power to rule on
disputed facts and the ALJ's determinations of such
facts are not given the weight of the findings of fact
by a district court. Id. As the reviewing court, I must
review the decision of the board, not that of the ALJ.
Id.
The scope of this court's review is "confined to the
agency record or such portions of it which the parties
may cite, and additional evidence is not to be admit-
ted." Roberts v. Morton, 549 F.2d 158, 160 (l0th
Cir. 1976). The IBLA's fact findings may only be set
aside if this court cannot "conscientiously find that
the evidence supporting the decision is substantial,
when viewed in the light of the entire record . . . . "
Id. Questions of law will be reviewed de novo. United
Transp. Union v. Dole, 797 F.2d 823, 828 (l0th Cir.
1986).
B. Whether the Parcels Were "Islands" at the Time
of the Original Surveys.
The parties agree that if the parcels were not
"islands" at the time of the original surveys, then
they were a part of the river bed and therefore title
to them passed along with the patents.
Plaintiffs contend that the parcels at issue were not
islands omitted from the original survey. The heart
of the plaintiffs' first argument is that the only way
to prove that the parcels were islands at the time of
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73a
the original surveys would be to show error in those
surveys because the surveyors were instructed to sur-
vey all islands and to note topographical features.
Since the ELM stipulated that those surveys were not
erroneous, the plaintiffs contend that any attempt to
show error would defy the stipulation.
"Stipulations of fact fairly entered into are con-
trolling and conclusive and courts are bound to en-
force them." Fenix v. Finch, 436 F.2d 831, 837 (8th
Cir. 1971). The stipulation that the original surveys
were correct and in exact accordance with the instruc-
tions must be considered together with the other por-
tions of the stipulation, including: (1) the BLM's
position, identified in the stipulation as a legal issue
to be determined, that the government's policy at the
time of the original surveys was "not to survey islands
falling within the regular course of public land sur-
veys;" and (2) the stipulation that the BLM was to
prove that the disputed parcels were islands at the
time of the original surveys. When these three provi-
sions of the stipulation are read together it is evident
that the stipulation does not preclude a finding that
the parcels were islands at the time of the original
surveys.
Thus, it is necessary to determine whether the
IBLA's conclusion that the land masses were "islands"
(as that term is defined in the stipulations) at the
time of the original surveys, is supported by substan-
tial evidence in the record.
Plaintiffs contend that the evidence of the surveyors'
decisions not to survey the parcels, the surveyors' de-
scriptions of the parcels, 2. the fact that other islands
___________________(footnotes)
2 Parcels 9, 10 and 14 are described in Surveyor Church-
field's field notes as a "bar or low island: a "long low island,
overflowing and unfit for cultivation," and a "low overflowing
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74a
were surveyed, and the testimony that the Colorado
River is in a constant state of semi-disequilibrium all
establish that the parcels were not islands at the time
of the original surveys.
Plaintiffs, however, do not challenge the IBLA's
findings that: (1) each parcel has at least one tree
on it which predates the original surveys; (2) each
parcel was fast, dry land rising above the mean high
water mark and separated from the mainland by a
channel at the time of the original surveys; (3) chan-
nels are in evidence today surrounding each parcel,
although some channels have been filled in by the
adjacent riparian land owners; and (4) the current
size, shape, and location of each parcel is substantially
similar to those shown on the original plats.
Although the plaintiffs' arguments are persuasive,
the IBLA's decision that the land masses in question
were "islands" at the time of the original survey is
undoubtedly supported by substantial evidence in the
record.
E. Ownership of the Islands.
The fact that the parcels in question were "islands"
at the time of the original surveys, does not, however,
end the inquiry into ownership. The Sixth Circuit
recently held that the issue who has title to an un-
surveyed island hinges on whether there is evidence,
either expressed or implied, that the United States
intended to retain the island. Wolff v. United States,
967 F.2d 222, 226 (6th Cir.), rehearing denied, 974
___________________(footnotes)
island . . . bar or island," respectively. Surveyor House's field
notes characterize parcels 20, 21, and 22 as a "large island"
(the original plat depicts this parcel as three islands), an
"island," and a "gravel bar," respectively.
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75a
F.2d 702 (1992). The court there concluded that
where no contrary intent has been shown, "[w]hat-
ever incidents or rights attach to the ownership of
property conveyed by the government will be deter-
mined by the States . . . . " Id. (citations omitted); see
also Bourgeois v. United States, 545 F.2d 727, 212
Ct. Cl. 32 (1976) (where the government's intent is
not clear from the face of the patent, title to unsur-
veyed islands in non-navigable waters passes accord-
ing to the laws of the state in which the islands are
located.); 3. cf. Ritter v. Morton, 513 F.2d 942 (9th
Cir.) cert. denied, 423 U.S. 947, 96 S. Ct. 362, 46 L.
Ed.2d 281 (1975) (court must look at all the facts
and circumstances in their totality to determine
whether islands in a navigable river were intended
to be included in the riparian grants); United States
v. Elliott, 131 F.2d 720 (10th Cir. 1942). 4. Therefore,
if the government conveys riparian land along non-
navigable waters and there is an absence of evidence
___________________(footnotes)
3 Bourgeois and Wolff are in conflict over whether state law
governs ownership with regard to islands in navigable
waters. Because the parties have stipulated that the instant
search of the Colorado River where the islands are located
is non-navigable, it is not necessary to decide whether the
same rule applies to islands in navigable waters.
4 In Elliott the court reasoned that the United States may
intend to restrict a conveyance to lands ending at the river-
bank when it disposes of riparian land on a non-navigable
river. However, when such intent is not shown, and the lands
are not within a state, what the grant conveys is a matter of
common law principles and Supreme Court decisions. The
court concluded that the grant at issue carried the exclusive
right and title to the center of the stream including islands.
The original surveys in the instant action were performed in
1889, thirteen years after Colorado statehood.
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76a
whether the government also intended to convey title
to islands located within the river, title to the islands
passes according to the laws of the state in which the
property is located.
Defendants' arguments that the Sixth Circuit erred
in Wolff are not persuasive. Defendants' contention
that a long line of cases recognize that title to un-
surveyed islands, whether located in navigable or
non-navigable water, remains in the United States
and may be surveyed and disposed of by the United
States, is too broad a statement of the law. Indeed a
close reading of the cases reveals that they are all
based on the same principle recognized by the court in
Wolff-that the intent of the United States governs
the scope of its land grants. See Wolff, 967 F.2d at
225.
The parties have stipulated that the patents to the
lands adjoining the disputed islands contained no ex-
press reservation of the islands to the United States.
Thus, it is necessary to determine whether the facts
and circumstances surrounding the original grants
evidence an implied intent to retain the islands.
In Wolff, the court identified a number of relevant
factors to consider in determining whether the gov-
ernment intended the island to be surveyed; (2) the
size and value of the island at the time the littoral land
was patented; and (3) whether the United States
treated the island as public land in the past. Wolff,
967 F.2d at 225-26.
The parties have stipulated that the original sur-
veys were neither fraudulent nor erroneous, and that
they were accepted as having been completed in exact
conformance with the surveying instructions. Indeed,
the government produced evidence of an unwritten
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77a
policy that islands unsuitable for cultivation would not
be surveyed. 5. This policy was justified by the fact that
the cost of surveying, platting and sale was greater
than the island's value. (IBLA decision at 54 n. 15.)
Therefore, it is clear that the government did not
intend to survey the islands at issue. Moreover, there
is no evidence in the record that the United States
has treated these islands as public lands.
In addition, as recognized by the court in Bour-
geois, where, as here, the river involved was non-
navigable, it would make little sense to pass title to
all shorelands without reserving access easements to
the islands. Bourgeois, 545 F.2d at 731 n. 3. Had
the government intended to retain the islands, it prob-
ably would have reserved easements across the ripar-
ian land. There is no evidence that the government
made any such reservations.
The most important evidence of an intent to convey
the islands along with the riparian land is the inclu-
sion of the islands in the surveyors' field notes and
the plats which were incorporated by reference in the
original patents and are a part of the description of
the lands granted. 6. Parcels 9, 10 and 14 are described
___________________(footnotes)
5 The IBLA determined alternatively that the original sur-
veyors erred when they failed to survey the islands, Here the
stipulations provided that the original surveyors did not err
in failing to survey the parcels. Plaintiffs were therefore jus-
tified in believing that this issue was settled and that no
evidence showing absence of error was necessary. See Brad-
ford v. United States, 651 F.2d 700, 704-05 (l0th Cir. 1981).
6 The IBLA did not discuss what effect the description of
the islands in the field notes has on the plaintiffs' claims of
ownership. Indeed, there is a strong argument that the de-
scription of the islands in the field notes and the plats which
were subsequently included by reference into the grants pre-
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78a
in Surveyor Churchfield's field notes as," respectively,
a "bar or low island," a "long low island, overflowing
and unfit for cultivation," and a "low overflowing
island . . . bar or island." Surveyor House's field
notes characterize parcels 20, 21, and 22 as, respec-
tively, a "large island" (the original plat depicts this
parcel as three islands), an "island," and a "gravel
bar."
"In determining boundaries in any land patent
case, special weight must be given to the precise
description of the land contained in the surveyor's
field notes and the official plat." Ritter v. Morton,
513 F.2d 942, 948 (9th Cir. 1975). The fact that an
island is mentioned in a surveyor's field notes and the
official plat is highly persuasive evidence that the is-
land was intended to be conveyed with the riparian
land. See id.; First Nat'l Bank v. United States, 59
F.2d 367, 370 (8th Cir. 1932). Patentees are entitled
to rely on field notes and plats incorporated into their
patents. See Bradford, 651 F.2d at 706.
Another fact bearing on the government's intent
is the size and value of the respective islands at the
time of the original surveys. The islands are substan-
tially the same size and shape now as they were at
the time of the original surveys. At present island 9
is 23.68 acres, island 10 is 66.63 acres, island 14 is
43.11 acres, island 20 is 19.51 acres, island 21 is 7.29
acres, and island 22 is 7.97 acres. Although these is-
lands are larger than the island in Wolff, that fact
alone is not dispositive. As discussed above, the in-
stant islands were of little value at the time of the
original surveys. Therefore, an intent to retain the
___________________(footnotes)
vents the islands from being treated as lands "omitted" from
survey.
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79a
islands can not be implied based solely on their size
at the time of the original surveys.
Based on the facts that the government did not
expressly reserve the islands, that the government
did not intend to survey the islands, that the islands
were then of little value, that the patents incorpo-
rated by reference the relevant plats and field notes
which included the islands at issue, that the govern-
ment apparently reserved no access to the islands
across the nearest land, and that the government has
not treated the islands as public land in the past, I
conclude that there is no clear evidence that the
government intended to reserve the islands when it
conveyed the riparian land. As a result, ownership
of the islands must be determined in accordance with
Colorado law.
In Colorado, "when a government grant is made
which does not reserve a right or interest that would
ordinarily pass by the rules of law, and the govern-
ment does no act indicating an intention to make
such reservation, the grant includes all that would
pass by it, as if it were a private grant. Stewart v.
Lamm, 132 Colo. 484, 289 P.2d 916, 917 (1955).
Defendants do not dispute that Colorado has adopted
the common law with respect to ownership of stream
beds. See More v. Johnson, 193 Colo. 489, 568 P.2d
437, 439 (1977). Accord, People v. Emmert, 198
Colo. 137, 597 P.2d 1025 (1979). Indeed, the parties
have stipulated that "a grantee of land bordering on
a non-navigable meandered river takes title to all
submerged lands between the mainland and the
thread of the river, unless expressly reserved by the
United States." See Bradford, 651 F.2d at 706.
Furthermore, it is reasonable to conclude that Colo-
rado would follow the common law rule governing
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80a
ownership of islands in non-navigable waters. Under
that rule grants of land on a nonnavigable river en-
title the grantee to all islands lying between the main-
land and the thread of the stream. Grand Rapids &
I.R. Co. v. Butler, 159 U.S. 87, 92, 15 S. Ct. 991, 992-
93, 40 L. Ed. 85 (1895). It follows that the plain-
tiffs hold title to the islands here at issue.
Accordingly, IT IS ORDERED that:
(1) Plaintiffs' motion for summary judgment is
granted;
(2) Defendants' motion for summary judgment
is denied; and
(3) Judgment shall enter in favor of the plain-
tiffs and against the defendants.
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APPENDIX F
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 93-1298
D.C. No. 91-C-470
EDWARD H. KOCH, WALTER B. LEMON, ROBERTA A.
LEMON, EDWARD N. JUHAN, ANTHONY F. ZAR-
LENGO, PLAINTIFFS-APPELLEES
v.
UNITED STATES OF AMERICA, DEPARTMENT OF IN-
TERIOR, BOARD OF LAND APPEALS (THE), BUREAU
OF LAND MANAGEMENT, DEFENDANTS-APPELLANTS
ORDER
Entered April 13, 1995
Before TACHA and BARRETT, Circuit Judges, and
CAMPOS,* District Judge.
This matter comes on for consideration of appellees'
petition for rehearing and suggestion for rehearing
in banc.
___________________(footnotes)
* Honorable Santiago E. Campos, Senior District Judge,
United States District Court for the District of New Mexico,
sitting by designation.
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Upon consideration whereof, the petition for re-
hearing is denied by the panel that rendered the
decision.
In accordance with Rule 35(b), Federal Rules of
Appellate Procedure, the suggestion for rehearing in
bane was transmitted to all of the judges of the court
who are in regular active service. No member of the
panel and no judge in regular active service on the
court having requested that the court be polled on re-
hearing in bane, Rule 35, Federal Rules of Appellate
Procedure, the suggestion for rehearing in bane is
denied.
Entered for the Court
PATRICK FISHER
Clerk
By /s/ Audrey F. Weigel
Deputy Clerk
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APPENDIX G
REVISED STATUTES (1873)
TITLE XXXII.- THE PUBLIC LANDS
* * * * *
CHAPTER SEVEN.
SALE AND DISPOSAL OF THE PUBLIC LANDS.
* * * * *
SEC. 2353. All the public lands, the sale of which
is authorized by law, shall, when offered at public
sale to the highest bidder, be offered in half quarter-
sections.
SEC. 2354. All the public lands, when offered at
private sale, may be purchased, at the option of the
purchaser, in entire sections, half-sections, quarter-
sections, half quarter-sections, or quarter quarter-
sections.
SEC. 2355. Every person making application at any
of the land offices of the United States for the pur-
chase at private sales of a tract of land shall produce
to the register a memorandum in writing, describing
the tract, which he shall enter by the proper number
of the section, half-section, quarter-section, half quar-
ter-section, or quarter quarter-section, as the case may
be, and of the township and range, subscribing his
name thereto, which memorandum the register shall
file and preserve in his office.
SEC. 2356. Credit shall not be allowed for the pur-
chase-money on the sale of any of the public lands,
but every purchaser of land sold at public sale shall,
on the day of purchase, make complete payment there-
for; and the purchaser at private sale shall produce to
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the register of the land office a receipt from the Treas-
urer of the United States, or from the receiver of
public moneys of the district, for the amount of the
purchase-money on any tract, before he enters the
same at the land office; and if any person, being the
highest bidder at public sale for a tract of land, fails
to make payment there for on the day on which the
same was purchased, the tract shall be again offered
at public sale on the next day of sale, and such person
shall not be capable of becoming the purchaser of that
or any other tract offered at such public sales.
SEC. 2357. The price at which the public lands are
offered for sale shall be one dollar and twenty-five
cents an acre; and at every public sale, the highest
bidder, who makes payment as provided in the pre-
ceding section, shall be the purchaser; but no land
shall be sold, either at public or private sale, for a
less price than one dollar and twenty-five cents an
acre; and all the public lands which are hereafter
offered at public sale, according to law, and remain
unsold at the close of such public sales, shall be sub-
ject to be sold at private sale, by entry at the land-
office, at one dollar and twenty-five cents an acre, to
be paid at the time of making such entry: * * *.
* U.S. GOVERNMENT PRINTING OFFICE; 1995 387147 20099
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